text:
    GOVERNMENT EMPLOYEES INSURANCE CO. v. JOHN F. REILLY
    [No. 919,
    September Term, 1981.]

      Decided March 5, 1982.

      The cause was argued before Lowe and Wilner, JJ., and Chari.es E. Orth, Jr., Associate Judge of the Court of Appeals (retired), specially assigned.

      Albert D. Brault, with whom were Janet S. Zigler and Brault, Graham, Scott & Brault on the brief, for appellant.

      William J. Rowan, III, with whom were Rowan, Abell, Quirk & Quinn on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The parties in this case agree that the facts found by the Circuit Court for Montgomery County were accurately depicted in its memorandum opinion and order declaring that appellant insurance company’s policy of insurance covered appellee’s automobile accident under the circumstances recited. They also agree that the court addressed the appropriate provisions of the policy; however, they disagree upon the result it reached, which included appellant’s obligation to pay all of appellee’s expenditures in defending the declaratory action brought by appellee.

We find so little difficulty with the pertinent policy provisions, in light of the agreed factual findings, it is hard to understand why there was a controversy in the first instance. Our consternation is so enhanced by the result reached by the trial judge that we hesitate lest we have overlooked some nuance of reasoning in the opinion. We have, therefore, elected to proceed by reciting in totidem verbis the opinion of the trial judge, adopting his recitation of facts as our own and addressing our critique to his reasoning. We will thereby respond to the appellee’s argument as well.

"MEMORANDUM OPINION & DECLARATORY JUDGMENT

The question presented by this Petition for Declaratory Judgment is whether a certain 1967 Volvo was an 'owned automobile’ within the meaning of a policy of automobile insurance.

The Plaintiff, John F. Reilly, purchased a Fiat automobile in 1976. Defendant, Government Employes [sic] Insurance Company (GEICO), issued a policy to Reilly from February 8,1978 to February 8, 1979 which insured his bodily injury and property damage liability and named as the 'owned automobile’ a 1971 Fiat. In late 1978 or early 1979, Reilly acquired a Ford Pinto as a temporary car until the Volvo, which he was contemporaneously purchasing became roadworthy. On January 31, 1979, the Fiat was replaced on the GEICO policy with the Ford Pinto. It was Reilly’s intent to use the Ford until such time as the Volvo was restored and roadworthy. He alleges that he spoke with a GEICO representative about adding the Volvo to the policy, but he didn’t intend that the car be on the road until the Spring of 1979. The Volvo was not added to the policy. On February 8, 1979 the policy was renewed for one year with the Ford as the 'owned automobile.’

On April 15, 1979, the Ford became inoperable as a result of hitting a pothole. On April 16, 1979, it is Reilly’s testimony with the Ford named as the 'owned automobile’ that the Volvo was not roadworthy. It had no valid inspection sticker, the turn signal lights did not operate, and it had only one seat. Nevertheless, as a result of the Ford becoming inoperable, Reilly, on April 16,1979, used the Volvo and was involved in an accident with one Beverly S. Haley. Because he thought the damage was minor, and because no one claimed injury, he did not notify GEICO on April 16.

On April 17 he went to London for two weeks and, upon his return, notified GEICO, who already had notice of the accident from Haley. Additionally, upon his return from London, he had the Ford repaired and used a rented car for the month it took to complete the repairs. Thereafter, he drove the Ford until the Volvo was added to the policy on June 27,1979. In November of 1979, the Ford was dropped from the policy and disposed of by Reilly.

On May 25,1979, GEICO denied coverage for the April 16 accident involving the Volvo. It is GEICO’s position that the Volvo did not fall within the definition of'owned automobile’ under the policy. The policy says, in pertinent part [that the company will pay all sums for which the insured shall become liable arising out of the ownership, maintenance or use of the 'owned automobile’ or any 'non-owned automobile’. An 'owned automobile’ means]:

(a) A private passenger ... automobile described in this policy for which a specific premium charge indicates that coverage is afforded ...
(b) [c][1] A private passenger . . . automobile ownership of which is acquired by the named insured during the policy period, provided
(1) It replaces an owned automobile as defined in (a) above, or
(2) The company insures all private passenger . . . automobiles owned by the named insured on the date of such acquisition and the named insured notifies the company within thirty days after the date of such acquisition of his election to make this and no other policy issued by the company applicable to such automobile, or
(c) (d)[1] A temporary substitute automobile.

'Temporary substitute automobile’ under the policy, was defined to mean:

Any automobile . . . not owned by the named insured, while temporarily used with the permission of the owner as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.

For the reasons set forth below, the Court finds that the 1967 Volvo was, at the time of the accident, an 'owned automobile’ within the meaning of the insurance policy.

The determination of whether the Volvo was covered is a question of fact, Maryland Indemnity and Fire Insurance Exchange v. Steers, 221 Md. 380 (1960). The cases have indicated that when a car is newly purchased to replace one which is at the time inoperable, that evidence is very strong support for the conclusion that the newly purchased car is a 'replacement’ vehicle, see Maryland Indemnity, id.; Harleysville Insurance Company v. Rosenbaum, 30 Md. App. 74 (1976). It does not follow, however, that no other evidence will support the same conclusion. A close reading of the language in the policy itself demonstrates that a major factor in the determination is the intent of the owner. An owner acquiring a new car may decide that it will be used by another member of the family, that it will be used only for special purposes (such as long distance trips or camping), that it will immediately replace a presently owned car or, as in the instant case, that it will eventually replace a presently owned car. Other language in the policy also illustrates the role of the owner’s intent. A 'temporary substitute vehicle’ may be covered if it is used while the primary vehicle is being serviced or repaired or if the primary vehicle has been lost or destroyed.

The facts in the case before the Court would support a conclusion that the Volvo was either a 'replacement’ vehicle within the meaning of section (c) (1), or that it was a 'temporary substitute’ vehicle within the meaning of section (d). As a practical matter, the Volvo was covered in either case. Further, the risk to the insurer in this case was not altered so long as the owner claimed coverage of only one automobile during that policy period, see e. g. Maryland Indemnity, supra, at 384-387.

Accordingly, it is this 1st day of May, 1981, by the Circuit Court for Montgomery County, Maryland, Sitting as a Court of Law,

DECLARED that by reason of the terms and conditions of GEICO Policy No. 255-82-45, and of the testimony taken in open court, that coverage is afforded to the Plaintiff, John F. Reilly, under the policy issued by Government Employes [sic] Insurance Company in the suit of Beverly S. Haley vs. John F. Reilly in the Circuit Court for Prince George’s County, Law No. 77144, and further that the Defendant is obligated to repay the Plaintiff all reasonable sums of money in defending said suit by Reilly to date and in pursuing his legal rights against GEICO.”

— replacement vehicle —

Neither Maryland Indemnity, supra, nor Harleysville, supra, are apposite here since both dealt with "newly acquired” automobiles purchased as "replacements” for the "owned automobile” designated in the policy. In Maryland Indemnity, the designated vehicle had become both legally and physically inoperable and consequently the vehicle involved in the accident was purchased to replace it. The Court’s holding on this issue, which we followed in Harleysville, was that a factual finding at the trial level that "a newly acquired automobile” is a replacement for a described vehicle will not be reversed unless clearly erroneous. Maryland Indemnity, supra at 387; Harleysville, supra at 78.

The Volvo in this case was neither "newly acquired” nor did it "replace” the designated Ford Pinto. The contextual use of the term "replaces,” as used in the policy, obviously connotes a supplanting or superseding of the designated car as opposed to a temporary substitution for it, which is addressed by the next clause. Factually here, the Ford was not "replaced” until November of 1979, having been repaired and used in the interim, and the Volvo was concededly not "newly acquired”. The trial judge was clearly in error in holding that the Volvo was a replacement automobile within the meaning of the policy. The evidence was uncontradictedly to the contrary.

We need not have addressed that finding, however, because the judge and the parties have overlooked a condition prerequisite to coverage.

Condition number 1 of the policy is that it
"applies only to accidents, occurrences and loss during the policy period . . . .’’(Emphasis added).

According to the facts recited by the judge, the Volvo and the Ford were acquired "contemporaneously” in late 1978 or early 1979. Since the Ford replaced the Fiat on January 31, 1979, it is clear that this contemporaneous acquisition was during the policy period drawing to an end on "02-08-79”. The Volvo accident occurred on April 16, 1979, after the policy had been "renewed for one year”, i. e., for the new

"Policy Period (Month Day, Year) From 02-08-79 to 02-08-80”.

As is apparent in subsection (c), for a replacement vehicle to comply as an alternative "owned automobile”, it must have been

"acquired by the named insured during the policy period.”

The Volvo was acquired during the policy period from "02-08-78 to 02-08-79”. The accident occurred during the policy period from "02-08-79 to 02-08-80.” The unambiguous meaning of the "policy period” during which the vehicle is required to have been acquired as a condition of coverage is the policy period during which coverage is claimed. If that were not so, applying the reasoning of the court, an entire fleet of simultaneously acquired vehicles would be subject to coverage by describing one only, so long as the insured "intended eventually” to replace it, e.g., in the eventuality the owner incurred an accident while driving one of the undescribed vehicles.

Some concern was expressed at argument that Harleysville, supra at 81, seems to hold that the clear and unambiguous proviso that a replacement vehicle must have been "acquired ... during the policy period” was unenforceable or of no effect because we cursorily disagreed with a similar contention:

"Harleysville next contends that Maryland Indemnity is inapplicable because under its policy the replacement automobile must have been 'acquired . . . during the policy period,’ a requirement not present in the policy considered in that case. It asserts that since the Chevrolet was purchased during the policy period from 28 June to 28 December 1972, it was not insured as a replacement automobile during the renewal period from 28 December 1972 to 28 June 1973, because it was not acquired during that period. We do not agree.”

That holding was, however — and is — restricted to the facts of that case wherein the replacement vehicle was purchased less than a month before a policy period ended and the insurance company was notified, id. at 77; but the renewal policy still listed the abandoned derelict, which had been replaced by the newly acquired vehicle. Nothing in that case should be interpreted as obviating the clear contractual condition prerequisite to coverage except where, as in Harleysville, the company fails to substitute the replacement automobile for the designated vehicle after it has been given notice of the purchase.

— temporary substitute vehicle —

The judge provided an alternate reason for reaching the same result. He contended that the Volvo could have been factually determined to be a "temporary substitute” vehicle; however, again he overlooks a condition precedent. A "temporary substitute automobile,” as pointed out in the opinion is defined by the policy as

"[a]ny automobile . . . not owned by the insured. . ..” (Emphasis added).

Recognizing the error in the judge’s alternative, the appellee contends that there is an ambiguity in the policy which would permit the Court to construe the policy in his favor.

"The ambiguity present in this contract is whether or not an automobile, acquired during the policy period, becomes an 'owned automobile’ for the purposes of policy coverage, when it is a temporary replacement or must it be a permanent replacement of the automobile named in the policy .... This Court should construe the policy against its writer, the insurance company, and find a temporary replacement for an owned automobile by a second owned automobile is sufficient for coverage.”

Even if the trial court had addressed the question of ambiguity — which it did not, see Md. Rule 1085 — and admitted evidence of some meaning other than the apparent one, we would be hard pressed to distort that which is clear, unequivocal and unambiguous. The trial court did not find it ambiguous, nor do we.

There is no reason to address the issue of defense costs and attorney’s fees in light of our result. We agree with the appellee that the issue joined between the parties was not a "close question,” but for reasons contrary to those expressed by appellee. An insurer has not unjustifiably refused to defend its insured when it is successful in its action denying coverage.

Judgment reversed.

Costs to be paid by appellee.

      1. The proper lettering as set forth in the policy was as we have interspersed, as recognized by the judge’s subsequent reference].


source: Caselaw Access Project

author:
Lowe, J.,
      Wilner, J.,

license: Public Domain

text:
    STELLA DONOVAN v. HELEN SCUDERI and FRANK MIKUS, Co-Personal Representatives of the Estate of Alfred C. Scuderi
    [No. 929,
    September Term, 1981.]

      Decided March 8, 1982.

      The cause was argued before Lowe and Wilner, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), specially assigned.

      Mark A. Winkler, with whom was Donald E. Sinrod on the brief, for appellant.

      Thomas B. Yewell, with whom was A. Lee Haislip, Jr., on the brief, for appellees.

       Note: Certiorari denied, Court of Appeals of Maryland, June 28,1982.

   Lowe, J.,

delivered the opinion of the Court. Wilner, J., filed a concurring opinion at page 228 infra.

To the extent that "morality consists of suspecting other people of not being married”, as defined by George Bernard Shaw, the virtues of each generation lie in the interpretation of the times. Conjugal relationships, absent the requisite incantations of clerk or priest, are probably no more frequent in this generation than in any other, only more notorious. The morality of such a relationship depends as much upon the customs of the country as it does upon the current feeling of one’s peers. Unashamed and unabashed companions of convenience are encouraged to avoid sanctifying their relationships today both by tax burdens extracted and benefits provided through the public policy of government. Judge-made law resting upon public policy of one generation, like that more properly legislated, may not, under changed conditions be the public policy of another. But some are caught in the transition from the older common law moral concept of meretricious misconduct espoused by judicial angels who themselves, in most instances, lived like men.

Baxter v. Wilburn, 172 Md. 160 (1937), adopted for Maryland the common law principle that contracts based upon the consideration, either past or future, of illicit sexual intercourse, or stipulation for such future intercourse, or promoting or furnishing opportunity for unlawful cohabitation, are void and unenforceable in equity. The mere fact that a man and a woman are living together in an unlawful relation does not, however, disable them from making an enforceable contract with each other, if it has no reference to continuation of the relation, or is only incidentally connected with it, and may be supported independently of it. A loan from one party to the other to buy clothes, for example, would be lawful, and upon the same reasoning a loan to buy real property not for the furtherance of the immoral relation would be enforceable. Id. at 162-163.

Stella Donovan (appellant here) probably did not know, nor would she have cared that the law was such as described by Chief Judge Bond in Baxter v. Wilburn when she began "both a business and a personal relationship” with Alfred C. Scuderi. That relationship (described by a witness at the hearing below as "a loving one”) was, according to the Orphans’ Court for Prince George’s County, inferentially meretricious because Ms. Donovan’s daughter conceded that her mother and Mr. Scuderi were lovers, and Ms. Donovan’s friend described the pair’s frequent and mutual "use” of an apartment Donovan had obtained at Scuderi’s request. Although Ms. Donovan testified, she was not asked about the relationship. Since Mr. Scuderi died four years after commencing that relationship, neither party to the agreement could testify regarding it because of Maryland’s dead man’s statute. Md. Cts. & Jud. Proc. Code Ann. (1980 Repl. Vol.), § 9-116. The court was compelled to piece the puzzle together from the observations of friends and relatives who testified not only to what they saw and heard, but, in questionably admissible testimony, to their own opinions as to what they surmised had occurred as a result of the personal "aspect” of the relationship. See Lynch v. Rogers, 177 Md. 478, 487 (1940).

On cross-examination, the appellees’ attorney drew a grudging concession from one of appellant’s witnesses when he asked:

"Actually that was a sexual relationship, wasn’t it?”

"Umm” replied the witness, whose foundation for that conclusion appeared purely speculative and "neither material nor relevant,” since she did not testify to any knowledge, nor did she profess to know, that there was anything immoral in their conduct. Lynch v. Rogers, supra at 487. To the contrary, the witness vehemently denied that she considered the relationship "illicit,” despite the knowledge that Mr. Scuderi was a married man.

The business part of the relationship was clearly established by proof of expenditures and services provided at Mr. Scuderi’s request by Ms. Donovan for Mr. Scuderi, including "catering services, personal shopping services (clothing, furniture and furnishings),” and loans, portraits, and sculptures, all amounting to some $60,000. These provisions were predicated upon Mr. Scuderi’s promise to repay her with 1000 shares of stock of the bank of which he was chairman of the board. The Orphans’ Court for Prince George’s County, from which this case emanated, found that such a contract existed. That aspect of the case was uncontradicted.

"In this case there was testimony by competent third party witnesses of an express contract to pay a definite sum to wit: 1000 shares of the stock of Peoples Security Bank and because I am convinced by their testimony at this juncture I find as a fact that such a contract did exist as expressed by the decedent to these witnesses which was not contradicted or disputed. Furthermore, I am also satisfied based upon the evidence produced that the services represented by claimant’s Exhibits 1-51 were in fact performed and the expenditures documented thereby made on behalf of the decedent and that he received substantial benefit therefrom.”

The court, however, declined to require the estate to honor the claim it had acknowledged as due because it found that:

"The decedent himself stated it most succinctly when he said of the claimant 'who he loved and who loved him so much that she would buy him things’ and that he would repay her. There is no way to conclude from this that either the expenditures made on behalf of the decedent or the services rendered to him by the claimant as well as the promise of the decedent to repay her were made for any reason other than the promotion of their meretricious relationship.”

Because Baxter v. Wilburn remains the law unless and until changed by the Legislature or the Court of Appeals (see Hans v. Franklin Square Hosp., 29 Md. App. 329, 335 (1975), cert. denied, 276 Md. 744 (1976)), the issue we must decide is whether the evidence was sufficient to permit the orphans’ court to infer that the decedent’s promise to repay the claimant was not made "for any reason other” than the promotion of their meretricious relationship. Fully aware that we are bound by the clearly erroneous standard of review, with all its implications, Md. Rule 1086, we hold that the evidence was not a sufficient basis for the conclusion reached by the trial judge.

Initially, we observe that the evidence was hardly sufficient to determine that the participants in this relationship, described by all witnesses and presumably the decedent as well as "both business and personal,” "engaged in a meretricious relationship” as described by the court or that "illicit sexual intercourse” as termed in Baxter ever ensued between them, let alone amounted to the consideration upon which the contract between them was predicated. The court observed that the decedent had been heard to comment upon the extent of his love for this "woman” and her love for him, that they saw each other three to four times a week, that claimant knew decedent was married, and that an apartment was maintained by appellant, and mutually used. While acknowledging that this was not a divorce case on the ground of adultery, the court observed that it was

"satisfied from the testimony of the claimant’s witnesses that the facts and circumstances described in this case show a disposition on the part of decedent and the claimant to engage in this type of activity and an opportunity to commit the same.”

Acknowledging that the establishment of adultery in a divorce proceeding requires a mere preponderance of the evidence to exclude any reasonable possibility of innocence, Steinla v. Steinla, 178 Md. 367, 373 (1940), we concede that the evidence may have been sufficient here to have warranted an inference of adultery for that purpose and upon that standard. The Court of Appeals has judicially noticed that copulation is generally conducted in a secretive setting, especially when illicit, Laccetti v. Laccetti, 245 Md. 97, 102 (1967), and has, therefore, liberally permitted proof by circumstantial inference or presumption, all the while cautioning against speculation upon mere suspicion:

— courts should exercise care and circumspection and should never hold that adultery has been committed unless the offense, and not merely a suspicion thereof, is clearly shown. Kline v. Kline, 179 Md. 10, 14 (1940);
— the evidence must be clear, unequivocal, satisfactory and convincing, Dougherty v. Dougherty, 187 Md. 21, 28 (1946), and of high quality, Stritmater v. Stritmater, 187 Md. 699 (1946); Renner v. Renner, 177 Md. 689 (1940);
— indiscreet acts raising a suspicion of adultery are not enough, Pohzehl v. Pohzehl, 205 Md. 395, 406 (1954); and
— the mere association of a man and woman, however frequent and extended it may be, is not sufficient to prove a charge of adultery, Hockman v. Hockman, 187 Md. 340, 344 (1946).

While it does not appear that such stringent scrutiny was given this questionable evidence (never offered to prove adultery but elicited to indicate the setting and likelihood thereof), it might sustain the suspicions of a Shavian observer. We fully agree with appellant, however, that the evidence was sufficient to sustain a contrary conclusion by an equally reasonable factfinder. Surely it would not have sustained a criminal conviction for having committed such an act, for where the State must go forward with, and carry throughout, the burden of proving the crime beyond a reasonable doubt, it may not rest upon eliciting grudging adjectival depictions of the relationship or moral judgments on the propriety of the conduct.

But whether appellant did or did not commit adultery with Mr. Scuderi is but one facet of the proofs necessary to offset the contractual claim she proved. The burden, which shifted to appellees by proof of the contract, was to show that the agreement was grounded upon the immoral aspect of the relationship. In Lynch v. Rogers, supra, a jury held that a woman housekeeper was entitled to be compensated for her 10 years of service as a domestic servant to the decedent, despite having given birth to the decedent’s child while residing in his home. The Court there also had the issue before them of whether the claimant and decedent’s relationship "was so grounded in immorality as to make the consideration for her services as a servant illegal, and the contract void on the ground of public policy.” Id. at 488. The Court of Appeals affirmed the finding, noting that even if a sexual relationship had grown out of the domestic servant relationship, the latter was not a consideration for the former, despite the fact that it obviously "furnish[ed] opportunity for unlawful cohabitation.” See Baxter at 162.

Our review of the record in this case compels the reversal of the Orphans’ Court on similar reasoning. The services and expenditures provided by Ms. Donovan, at Mr. Scuderi’s request, were undoubtedly stimulated (as expressed by decedent) by the. "love” of each for the other, but they were not dependent upon, in consideration for, or necessarily to promote, an unlawful cohabitation.

The consideration here was, as implicitly conceded by the court, a promise to repay in kind or in stock, but it was not in furtherance of the "immoral relation”. Baxter points out that repayment of a loan to a woman (presumably with whom the lender is having an affair to buy clothes or property would be enforceable unless the property purchased was for the furtherance of the immoral relation. Id. at 163. Surely, in this era of equal rights, a loan or loans from a woman to purchase clothes, property (both real and personal), and services predicated upon repayment, and only remotely related to the sexual aspect of the relationship, should also be enforceable.

Significantly repeated and relied upon in Baxter was the testimony of Mr. Baxter that their agreement was conditioned upon the proviso that "we lived together and everything was all right. Of course she could not kick me out, and then try to take the home [he had given her with those strings attached] away from me.” Such agreement had been made by Baxter when he gave Wilburn a house and had her execute and hold a mortgage to him, to be recorded only if she predeceased Baxter. The parties quarreled and separated, and she destroyed the mortgage. The Court of Appeals pointed out that what Baxter sought was not a performance of the agreement proved, but a remedy for failure of continuation of the relationship in contemplation of which the agreement had been made. From the facts proved, and admitted to by Baxter, there was found to be a direct connection between the man’s providing the house and his living in it with the woman.

Except for one expenditure here, there is no evidence from which an inference can be drawn that either the services provided for Mr. Scuderi, the purchases made at his request, or the loans to him, were predicated upon, or intended to promote or furnish an opportunity for cohabitation. Ample evidence sufficed to infer that the agreement sprang from a mutual love, and a desire to convenience and provide for each other; but so far the Court of Appeals has never held that contracts may not be born from mutual affection or that one must contract only with an enemy or an unknown.

In regard to expenditures for and related to the apartment mutually used by appellant and Mr. Scuderi, there is some justification for inferring that it was provided as a setting for their mutual sexual gratification. Since most of the evidence in this regard consisted merely of opinion and suspicions that the relationship was a sexual one, and is the type of evidence depicted by the Court of Appeals in Lynch, supra, as neither relevant nor material, we will not excise even those expenditures from our holding. There was testimony that the apartment, although inhabited by appellant, had been used to entertain Mr. Scuderi’s business associates and friends. In fact, there was no clear evidence that Mr. Scuderi ever spent a single night with Ms. Donovan at the apartment. To the contrary, her daughter, who lived there with her mother, testified that Mr. Scuderi had to be chauffeured home from Annapolis to Marlow Heights

"every time he came to Annapolis, which was three or four times a week.”

None of appellant’s testimony was controverted. The personal representatives of Mr. Scuderi’s estate did not produce a single witness or submit evidence of any nature.

When a claimant has proven a contractual claim, as was done here, it is not her responsibility to further prove that it was not predicated upon an illicit relationship. The burden shifts to appellees, who are denying the claim, to do that, and that affirmative defense should be convincing to the factfinder by at least a preponderance of the evidence. By eliciting admissions from the claimant’s witnesses that the parties to the contract were mutually attracted, appeared loving, or even "appear to be” lovers, is insufficient to carry the shifted burden to show that the contract was based upon the consideration of either past or future illicit sexual intercourse. See Lynch, supra.

When Ms. Donovan testified, she was never asked a question by appellees regarding her relationship or her conduct with the decedent. Only her friends, her daughter and the deceased’s sister were ever asked to express their opinion about that relationship. No evidence was produced that they cohabited. Only broad questions with implications of sexual overtones (such as whether the services provided Ms. Donovan "would be pretty much what you’d expect a wife to be doing for her husband”) were asked, and even then objections were sustained. Notwithstanding, however, appellees argue that inference in their brief. The speculative opinions from the witnesses that the couple had become "lovers” or that appellant was Mr. Scuderi’s "ladyfriend,” simply are not enough under Baxter to preclude a right of recovery upon the defense that the contract contravened public policy by providing a quid pro quo for the contract.

Nor are we impressed by appellees’ selections of testimony as supporting a legitimate inference of that affirmative defense. Appellees argue that:

"Biagini and Spell testified that Scuderi had given Donovan stock as compensation for services rendered by her but, as testified by Biagini, the stock was returned by Donovan because of an argument between her and Scuderi. This fáct, standing alone, would support the lower court’s conclusion that the underlying reason for all expenditures made by Donovan was her lover relationship with Scuderi otherwise, quite obviously, she would have retained the payment tendered to her rather than return it following a lovers argument.”

Even if we were impressed by such argument, the extract references do not substantiate what appellees contend. Mrs. Spell’s testimony was:

"COUNSEL: Did there come a time when you became aware that that stock that was given was returned?
A Yes.
Q And did you discuss that with Mr. Scuderi?
A I believe I did.
Q Did he tell you what it was returned for, the purpose of it being returned?
A To cash it in.”

That testimony was completely in accord with Ms. Donovan’s testimony that she returned the stock to be cashed in because of a need for cash. The testimony of Ms. Biagini on the other hand was a vague recollection that the stock was returned after an argument, but she conceded that she was not present.

"A Yes. I knew that she had been given stock and that she had returned it to him.
Q Do you know what the circumstances were of that return in any way? Were you present—
A No, I wasn’t present, but I seemed to remember that it was over an argument.”

Appellees further contend that:

"Other than the catering services provided for a wake all the services provided by Donovan were outside the regular scope of her business; all of them could have been easily paid for by Scuderi; they all commenced with the commencement of the adulterous relationship between Donovan and Scuderi; they were all provided because it stimulated Scuderi’s ego and to suggest that they were not a closely interwoven part of and supportive of the adulterous relationship would be more than naive.”

We are unimpressed that the agreement stimulated Mr. Scuderi’s ego. That does not preclude enforcement; it would, of itself, be a valid consideration for an enforceable contract. None of the implications of appellees’ argument make an otherwise valid contract unenforceable.

Whether an agreement is reached as the result of ego, braggadocio, love, kindness or affection does not affect the validity of a contract. Nor is it unenforceable because the contract may never have been struck, "but for” the relationship, even if proven adulterous. That relationship does not disable parties from making an enforceable contract with each other so long as it does not stand or fall upon the sexual relationship. Such a relationship may stimulate the contract; it will not support it. Unlike Mr. Baxter, Mr. Scuderi did not say, "I will pay you back only if we live together.” Her recompense was promised without regard to the nature of the relationship, or its continuance. The case will be remanded to the Orphans’ Court to enforce the contract it approved.

Judgment reversed; case remanded to the Orphans’ Court for Prince George’s County to enforce the claim.

Costs to be paid by appellees.

Wilner, J.,

concurring:

I agree entirely with the result reached by the panel. The Orphan’s Court having found an express agreement by Mr. Scuderi to reimburse Mrs. Donovan for the various (and considerable) sums she expended at his request or on his behalf, his estate should be required to make good on that agreement.

In order to reach that manifestly just result, however, Judge Lowe had to steer a careful course around the shoals of Baxter v. Wilburn, 172 Md. 160 (1937), which he did by (1) casting some doubt as to whether the evidence sufficed to show a "meretricious relationship” in the first instance, and (2) concluding that, in any event, the sums advanced by Mrs. Donovan were not expressly predicated upon a continuation of such a relationship.

I have some difficulty with both of those premises. The evidence seems clear enough to me that Scuderi and Donovan were involved in an amorous, and, at least as to him, an adulterous relationship; and a fair inference could be drawn that Mrs. Donovan would not have advanced the sums involved absent that relationship. It is naive at best to assume that she would have expended $60,000 to buy him clothing, meals, artwork, etc., if he had never entered into the "loving” relationship with her, or had withdrawn from it.

The problem, it seems to me, is with Baxter itself, and that is what prompts me to write this concurring opinion.

Baxter'was decided in 1937. The heart of it is this language appearing atpp. 162-63 of 172 Md. (citations omitted):

" 'Contracts based upon the consideration, either past or future, of illicit sexual intercourse, or stipulating for such future intercourse, or in any manner promoting or furnishing opportunity for unlawful cohabitation/ are void and unenforceable in equity. . . . But the mere fact that a man and a woman are living together in an unlawful relation does not disable them from making an enforceable contract with each other, if it has no reference to continuation of the relation, or is only incidentally connected with it, and may be supported independently of it.” (Emphasis supplied.)

These principles are couched in very broad language. What is meant, for example, by "unlawful” cohabitation, or "illicit” sexual intercourse? Is the reference point a specific statutory prohibition, some consensus of "public policy,” or what a particular judge determines to be "good morals”? See Comment, Illicit Cohabitation of Parties as Affecting Contracts Made Between Them, a review of Baxter appearing in 2 Md.L.Rev. 291 (1938); see also Comment, Further Concerning Illicit Cohabitation of Parties as Affecting Contracts Made Between Them, 5 Md.L.Rev. 331 (1941), reviewing Baxter in light of Lynch v. Rogers, 177 Md. 478 (1940).

The problem becomes especially troublesome in light of the vast changes in societal thinking about cohabitation between unmarried couples since 1937. It has been reported that between 1960 and 1970, the number of cohabitors in the United States increased eight-fold. At least one report estimated that, in 1976, there were as many as six to eight million unmarried cohabitors in this country. See Fineman, Law and Changing Patterns of Behavior: Sanctions on Non-Marital Cohabitation, 1981 Wis.L. Rev. 275, and in particular footnote 1 on p. 275; also Glendon, Marriage and the State: The Withering Away of Marriage, 62 Va.L. Rev. 663, 685, et seq. (1976). Bureau of Census statistics indicate a somewhat fewer number of cohabitors — about 1.6 million couples. See U.S. Bureau of the Census, Dept, of Commerce, Current Population Reports, Series P-20, No. 365, Marital Status and Living Arrangements, Oct., 1981.

As pointed out by Professor Mary Ann Glendon in her Virginia Law Review article, supra, "[c]ohabitation is favored among young People[,] among pensioners and others receiving benefits terminable or reducible upon formal marriage, and increasingly among other diverse social groups.” Id. at 686; footnotes omitted. This is not necessarily the result of sexual promiscuity; and, indeed sexual attraction, though often present, may at best be an incidental consideration. Men and women enter into these relationships for a variety of reasons. Glendon observed (Id. at 687):

"Motivations to enter informal rather than legal marriage include economic advantages as in the case of many elderly people, inability to enter a legal marriage, unwillingness to be subject to the legal effects of marriage, desire for a 'trial marriage,’ and lack of concern with the legal institution. This lack of concern is nothing new among groups accustomed to forming and dissolving informal unions without coming into contact with legal institutions. Among these groups legal marriage is but an aspect of the irrelevance of traditional American family law, law that is viewed as being property-oriented and organized around the ideals of a dominant social group. Lack of concern with marriage law has been growing, however, among many who definitely are not outside the mainstream of American life. Until recently these converts accepted unquestioningly the traditional structures of the enacted law, but they now find that on balance the enacted law offers no advantages over informal arrangements.” (Footnotes omitted.)

To some extent, the increasing desirability of cohabitation without benefit of clergy is actually promoted by our public laws and institutions. For example:

(1) Where both parties are wage earners, the Federal income tax laws, since 1969, have provided an economic incentive for couples to remain unmarried. See Bittker, Federal Income Taxation and the Family, 27 Stanford L.Rev. 1389, 1429, et seq. (1975); Note, The Haitian Vacation: The Applicability of Sham Doctrine to Year-End Divorces, 77 Mich.L.Rev. 1332 (1979). This "marriage penalty” has been partially alleviated by Section 103 of the Economic Recovery Tax Act of 1981, Pub. L. 97-34 (1981), but it still exists. See S.Rep. No. 97-144, 97th Cong., 1st Sess., pp. 29-33 (July 6,1981), reprinted in 6 U.S. Code Cong. & Ad. News 191, 222-26 (Aug. 1981).

(2) Older people, on fixed incomes, often cannot survive living alone; and, especially where they rely on social security or pension benefits attributable to the earnings of a deceased spouse, there is a clear disincentive to remarry. See Glendon’s article, supra, 62 Va.L.Rev. at 687 (footnote 99).

(3) Conversely, a number of traditional disincentives to unmarried cohabitation have been (or are being) swept away as courts have begun to apply to such status some of the rights, obligations, and benefits that once were reserved to the marital relationship. See, for example, Marvin v. Marvin, 557 P.2d 106 (Cal. 1976); Kozlowski v. Kozlowski, 403 A.2d 902 (N.J. 1979); Carlson v. Olson, 256 N.W.2d 249 (Minn. 1977); Beal v. Beal, 577 P.2d 507 (Or. 1978); but compare Hewitt v. Hewitt, 394 N.E.2d 1204 (Ill. 1979); also Markham v. Colonial Mortgage Service Co., Associates, Inc., 605 F.2d 566 (D.C. Cir. 1979); Comment, Protection of Unmarried Couples Against Discrimination In Lending Under The Equal Credit Opportunity Act, 93 Harv.L.Rev. 430 (1979).

All of this indicates a somewhat grudging and still incomplete, but nevertheless changing view toward the overall relationships between men and women, and toward unmarried cohabitation in particular. It is a view that does not square entirely with the broad principles enunciated in Baxter.

I do not suggest that Baxter be overruled; only that it be reviewed and limited. Agreements to pay value for acts of prostitution or adultery ought to remain judicially unenforceable because the Legislature has expressly declared such acts to be illegal and therefore against public policy. To enforce those types of agreements would create a contradiction between the civil and the criminal law. But when we venture much beyond that, we run into a real thicket that courts ought to avoid. For example:

(1) Is a cohabitating relationship founded upon economic or other considerations "meretricious” merely because it also involves or includes sexual contact between the parties?

(2) Would it make a difference if (a) the sexual contact is an important or even critical element in the relationship, or (b) if one or both of the parties is legally married to someone else but separated (i) by decree of divorce a mensa et thoro, (ii) by formal agreement, (iii) by mere acquiescence, or (iv) without agreement?

(3) In which, if any, of these cases, should the courts decline to enforce reciprocal rights and obligations arising from the parties having co-signed leases, mortgages, chattel or personal loans, or having taken title to property jointly, where such actions were taken in consideration of the overall relationship between the parties and with a clear view toward its continuation?

(4) Should a different rule apply where, as here, the relationship in question falls short of actual, full-time cohabitation, but involves sexual contact as part of a broader spectrum of personal ties?

These are things that the Court of Appeals, or the General Assembly, should look at anew. We, of course, as Judge Lowe correctly observed, are bound by the law as it presently exists. I would hold, however, if I were free to do so, that a contract such as that involved here should be enforceable even if it was expressly conditioned on the fact and the continuation of the overall relationship between Donovan and Scuderi, one element of which was the periodic commission of adultery. I would restrict the bar of Baxter to express contracts for sexual acts that the law itself declares to be illegal. In this area, at least, I would divorce the law of contracts from what appears to be a shifting and somewhat uncertain public sense of morality.

      . Patton v. United States, 281 U.S. 276, 306 (1930), quoted and followed in Adler v. American Standard Corp., 291 Md. 31, 45-46 (1981).

      . "Love” is not the ingredient of an unlawful cohabitation which provides either the illegality or the immorality. In many instances it mitigates the illicitness of such unions.

      . With the exception of the apartment refurbishing, the loans and services consisted of
      "the amount due on catering services, personal shopping services (clothing, furniture and furnishings); bank loans with Peoples Security Bank of Maryland, in the name of the Petitioner, Stella Donovan, proceeds of which were used for deceasedf’s] benefit with repayment promised; and sums paid to third persons for the benefit of the deceased at his specific request ....”


author: Mason, J.,

text:
    FRANK EDWARD NAIR and DAVID GORDON NAIR v. STATE OF MARYLAND
    [No. 1451,
    September Term, 1980.]

      Decided March 11, 1982.

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

      Michael R. Malloy, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellants.

      Adriana V. Klich, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Lawrence V. Kelly, State’s Attorney for Allegany County, on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

David Gordon Nair and Frank Edward Nair, appellants, were tried jointly in the Circuit Court for Allegany County of store house breaking and larceny. They were found guilty on both counts and sentenced to terms of five and ten years imprisonment respectively. On appeal appellants present the following two questions:

1. Did the lower court err in admitting certain allegedly stolen firearms because they were seized as a result of an illegal search and seizure?

2. Did the lower court err in not ordering separate trials for the appellants, as Frank Edward Nair was tried by a jury, whereas David Gordon Nair was tried by the Court?

According to the evidence adduced at trial, on 15 June 1980 Robert White, a private citizen, contacted Sergeant McGowan of the Maryland State Police and told him he had an offer to purchase several weapons and inquired if the police had any information regarding the theft of some shotguns. Sergeant McGowan informed White that he did not have a report of such a theft, but advised him to purchase the weapons and to call him back. Thereafter, Sergeant McGowan made a further search of his records and found that a store in Frostburg had been burglarized on 13 June 1980 and several weapons had been stolen. Later that evening White brought two Remington shotguns to the police barracks. The serial numbers on the guns matched those of the guns stolen from the store in Frostburg. White informed Sergeant McGowan that he had purchased the guns from the Nair brothers, Terry, Frank and David. He gave the sergeant a physical description of the brothers and the tag number and description of the car they were driving. White also told McGowan that the Nair brothers had offered to sell him more weapons.

On 17‘June 1980 at approximately 2:00 p.m. White told Sergeant McGowan that he had arranged to purchase additional weapons from the Nair brothers and was supposed to meet them between 5:00 and 6:00 p.m., at Bucks Hotel. The sergeant staked out the area and at 5:00 p.m., he stopped the previously described vehicle which was being operated by David Nair with Frank Nair as a passenger. Both appellants were arrested and removed to a police vehicle where they were handcuffed and advised of their Miranda rights. According to Sergeant McGowan he requested and was granted permission by David Nair, in whose name the car was listed, to search the car. Pursuant to information previously given him by Robert White, McGowan went to the back of the vehicle, pulled up the trunk mat and observed three or four weapons concealed under the mat. Upon returning to the vehicle police Trooper Wilson told him that David Nair said he did not want him to search any further. No further search was conducted at the scene. The vehicle was taken to the Cumberland Barracks where it was searched and four guns were seized.

I.

Appellants argue that "because Sergeant McGowan had ample time and probable cause to obtain a search warrant for appellant’s car before the appointed time of the sale of the shotguns, there were no exigent circumstances justifying the warrantless search in this case.” We do not agree.

In order to justify the warrantless search of appellant’s automobile under the so-called automobile exception, Carroll v. United States, 267 U.S. 132 (1925) probable cause and exigent circumstances must be established. Soles v. State, 16 Md. App. 659 (1973). In the present case appellants concede that there was probable cause but argue that there were no exigent circumstances because Sergeant McGowan had ample opportunity to obtain a warrant. Although arguably the police may have had sufficient information to obtain a warrant after Robert White purchased two stolen weapons from appellants on 15 June 1980, the police were under no obligation to conclude their investigation or arrest appellants at that time. See Cardwell v. United States, 47 U.S. 583, 595 (1974) where the Court said: "Assuming that probable cause previously existed, we know of no case or principle that suggests that the right to search on probable cause and the reasonableness of seizing the car under exigent circumstances are foreclosed if a warrant was not obtained at the first practical moment.”

In the present case the police were notified on 17 June 1980 at 2:00 p.m., that a sale of weapons would take place at 5:00 p.m. Inasmuch as they only had a few hours to react to the imminent sale of stolen weapons, we think it clear that the police were faced with exigent circumstances demanding immediate action. Of like import see Jarrell v. State, 36 Md. App. 371 (1971). In that case this Court found exigent circumstances demanding immediate action where the police conducted a warrantless search of a vehicle for marihuana upon receiving information that a sale was to occur within two hours. See also United States v. Neubourn, 600 F. 2d 452 (4th Cir. 1979) where the Fourth Circuit under a similar factual situation held that the warrantless search of the trunk of a vehicle loaded with stolen firearms was within the automobile exception to the warrant requirement of the Fourth and Fourteenth Amendments. For the reasons stated herein we conclude that there were exigent circumstances to conduct a warrantless search of appellant’s vehicle. Because of this finding we need not determine whether David Nair’s consent to search the vehicle was voluntary and validated the search.

II.

The record discloses that on the morning of the trial the following colloquy occurred:

THE STATE: Your Honor, at this time would call companion cases 2212 and 2213 Criminal Trials, the State of Maryland v. Frank Edward Nair and David Gordon Nair. And what the State finds to be a somewhat unusual situation, Mr. Frank Edward Nair, it is my recollection, requests trial by Jury; Mr. David Gordon Nair requests trial by Court.
BY THE COURT: Mr. Clark, you represent Mr. Frank Edward Nair?
MR. CLARK: Yes sir.
BY THE COURT: His election to be tried by a Jury?
MR. CLARK: Yes sir.
BY THE COURT: Mr. Schindler, I understand that you represent David Gordon Nair?
MR. SCHINDLER: Yes, Your Honor.
BY THE COURT: And it is his election to be tried by the Court?
MR. SCHINDLER: Yes, that’s the desire of the Defendant.
BY THE COURT: And the cases have been consolidated for trial. Is there any objection?
MR. CLARK: I might say this. This is the... I’ve been practicing law for forty years, and this is the first time in my experience I’ve ever seen this happen. Just for the purpose of the record reserve a objection to the method.
BY THE COURT: All right.

Frank Nair, who was tried by a jury, argues that during the course of the trial the jury heard testimony presented by the State in its prosecution of David Nair, who was tried by the court, that David Nair was observed smoking marihuana and admitted the theft of the guns. Frank Nair contends that this testimony was not relevant to his case and was prejudicial.

In response the State argues that Maryland Rule 736 (a) (5), i.e., "A Motion for Joint or Separate Trial of Defendants or Offenses” is a mandatory pretrial motion and must be filed within thirty days of counsel’s appearance unless the court, for good cause shown, orders otherwise. The State argues further that good cause was not shown.

We do not think that Maryland Rule 736 (a) (5) applies in this case. When David Nair requested a court trial and Edward Nair requested a jury trial, this, for all intents and purposes, resulted in a severance of the trials. Neither appellant could have anticipated that they would be tried jointly so as to require them to file pretrial motions invoking Maryland Rule 736 (a) (5). Although Maryland Rule 736 (a) (5) is not applicable in this case, no prejudicial error was shown. We do not think Robert White’s testimony that he observed David Nair smoking marihuana was so prejudicial to Frank Nair’s case as to require a reversal. Nor do we think it error for Robert White to testify that David Nair admitted the theft of the rifles, since he also testified that Frank Nair admitted the theft of the weapons. We find no reversible error in the case resulting from the joint and simultaneous trials of appellants. See United States v. Rimar, 558 F. 2d 1271 (6th Cir. 1971); Copening v. United States, 353 A. 2d 305 (1976), but see People v. Kanopka, 164 N.Y.S.2d 139 (1957) where this court found a similar practice improper. For the same reason as set forth by this Court in Scarborough v. State, 50 Md. App. 276 (1981), a case involving dual jury trials, we strongly disapprove of the practice of conducting joint and simultaneous trials of co-defendants when one has requested trial by court and the other has requested trial by jury.

Judgments affirmed.

Costs to be paid by appellants.


author: Bishop, J.,

text:
    STATE ROADS COMMISSION OF THE STATE HIGHWAY ADMINISTRATION v. TOWN OF COLMAR MANOR et al.
    [No. 771,
    September Term, 1981.]

      Decided March 12, 1982.

      The cause was argued before Moylan, Wilner and Bishop, JJ.

      Henry F. Leonnig, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Nolan H. Rogers, Assistant Attorney General, on the brief, for appellant.

      Paul S. Warshowsky, with whom were Robert H. Levan and Levan, Schimel & Richman, P.A. on the brief, for appellees.
   Bishop, J.,

delivered the opinion of the Court.

This is an appeal from the ruling of the Circuit Court for Prince George’s County prohibiting the State Highway Administration, appellant, from abandoning a "quick take” condemnation proceeding. The court’s ruling was based upon a finding that there had already been a "taking” of the appellee’s property.

On January 23, 1979, appellant filed a petition for the condemnation of certain property in Prince George’s County, naming as defendants the Town of Colmar Manor, a municipal corporation (appellee); Prince George’s County, and the Washington Suburban Sanitary Commission. Neither of the latter two defendants is involved in this appeal since neither has any financial interest in the proceedings. A check in the amount of $185,250.00, payable to the Clerk of the Court, was simultaneously deposited with the petition, which in part recited:

"... your Plaintiff deems the said sum of money to be the fair market value of the land and improvements taken and damages done to the aforesaid property. That your Plaintiff states that it is in the public interest and necessary for the State Roads to take possession of the aforesaid land and improvements immediately upon depositing the said money into the hands of the said Clerk of the Court, and in conformation with the aforesaid provisions of statute it is so taking possession for the aforesaid purposes, on the day of , 19 .”

The condemnation petition closed with prayers for condemnation of the property and further proceedings.

On February 16,1979, the appellee filed a Motion to Withdraw Funds Paid Into Court. The motion recited the filing of the condemnation petition and the deposit of the check; set out the appellee’s ownership of the property and the lack of any financial interest of the Washington Suburban Sanitary Commission and Prince George’s County; and asserted appellee would not contest the taking but would contest the reasonableness of the offer. On February 26,1979, the court granted the motion, and the money was withdrawn.

For the next 22 months the parties engaged in discovery and traded other pretrial motions. The only items of importance that occurred were appellant’s response to appellee’s interrogatory No. 7 and appellee’s response to appellant’s interrogatory No. 9. The former asked "What do you contend to be the date of taking of the property to be condemned?” to which appellant responded "January 26, 1979.” Appellant’s interrogatory No. 9 requested information with reference to the use and occupancy of the said property within the past 5 years to which the appellee responded:

"9. The following named persons occupied the subject property within the past five (5) years:
(a) Pincus Liquors and Pincus Grill 3839 Blandensburg Road Colmar Manor, Maryland
See attached Lease.
(b) D & D Tire Company, Inc.
3901 Bladensburg Road Colmar Manor, Maryland
See attached Lease.
(c) Russell F. Barrett,
T/A Trojan Trojan Inc.
3933 Bladensburg Road
Colmar Manor, Maryland
See attached Lease.”

Attached to that answer were copies of the leases: 1) a lease between appellee and Pincus Liquors and Pincus Grill dated May 1,1973 reciting a rental of $300.00 per month on a month to month term, terminable upon 30 days notice by either party; 2) a lease between appellee and D & D Tire Company, Inc. dated June 1, 1976 reciting a rental of $1,168.75 per month for an initial term of 8 months and thereafter renewable on a month to month basis, terminable upon 30 days notice by either party; 3) a lease between appellee and Russell F. Barrett, T/A Trojan Trojan, Inc. dated November 12, 1974 reciting a rental of $1,375.00 per month on a month to month term, terminable upon 30 days notice by either party.

On January 9, 1981, appellant filed a petition to abandon the condemnation, alleging in part that:

"... on January 7,1981, the State Roads Commission by resolution made and adopted, (copy attached), determined that the Highway Project which was the subject of the initial condemnation proceeding is to be deleted from the official State Highway Administration program and further authorized the Office of Real Estate and Office of Counsel to take such steps as are necessary to abandon this condemnation proceeding filed prior hereto against the defendants herein.”

On May 13, 1981, the court denied the petition based on a finding that there had been a taking and, therefore, appellant would not be permitted to abandon. From the denial of the petition this appeal was filed.

Question Presented

The sole question raised in this appeal is whether the court erred in finding that a taking had occurred under Section 12-102 (1) of the Real Property Article and therefore abandonment of the condemnation proceedings is precluded pursuant to § 12-109 (d) (1) of the same Article.

Law

This case involves a "quick take” condemnation by the appellant under the accelerated procedure set out in Part IV of the Transportation Article, Annotated Code of Maryland. Section 8-334 (b) of that Article provides, in relevant part, that "condemnation proceedings under this part shall follow the procedures set forth in Title 12 of the Real Property Article and the Maryland Rules.”

In terms of the issue before us, two provisions of Title 12, Real Property Article are relevant: namely, § 12-109 (d) which precludes abandonment of a condemnation proceeding after a "taking” has occurred (see also Md. Rule U 26), and § 12-102, which defines when a "taking” occurs. Section 12-102 provides:

"In this title, property is deemed to be taken:
(1) If the plaintiff lawfully is authorized to take the property before trial pursuant to Article III of the Constitution of the State, or any amendment to it, and the required payment has been made to the defendant or into court, any required security has been given, and the plaintiff has taken possession of the property and actually and lawfully appropriated it to the public purposes of the plaintiff.
(2) In every other case, if the plaintiff pays the judgment and costs pursuant to Subtitle U of the Maryland Rules.”

As the proceeding here was a "quick take” one, the precise question is whether the events required by Section 12-102 (1) have occurred in this case. The required payment of course was deposited into court, but had the appellant "taken possession of the property and actually and lawfully appropriated it to the public purposes of the plaintiff’ (emphasis supplied)?

The legislative history of Section 12-102 shows clearly that the General Assembly desired to make the taking of possession a separate and independent element of a "taking,” not to be subsumed merely in the more amorphous concept of "appropriation” to a public use.

Section 12-102 was enacted as Chapter 52, Acts of 1963, which began as Senate Bill 8 (1963). As introduced, the bill provided that a taking would occur under a "quick take” arrangement when the security had been paid and "there has been an actual and lawful appropriation of the property to the public purposes of the plaintiff.” During the legislative process, however, the last quoted phrase was deleted and replaced with the current language:

"The plaintiff has taken possession of the property and actually and lawfully appropriated it to the public purpose of the plaintiff.”

The lower court based its finding that there had been a taking and, therefore, that there could be no abandonment on the appellant’s answer to appellee’s interrogatory No. 7, and "the long period of time between the petition and the decision to abandon” and on Hardesty v. State Roads Comm’n, 276 Md. 25, 343 A.2d 884 (1975), using the following language:

"THE COURT: In determining whether or not there has been a taking, which is obviously the heart of the issue — if there has been no taking, then clearly abandonment would not be proper —
Hardesty would seem to indicate to this Member of the Court that filing the petition, paying into Court is probably not sufficient to constitute a taking, although certainly there ísic] are factors. If there was a physical appropriation, clearly there would be a taking. In the absence of a physical appropriation, though, there can still be a taking, and we think there can still be a taking in other than just scenic easement cases.
In determining whether or not there has been a taking there are a number of factors. One factor as was present in Hardesty is the long period of time between the petition and decision to abandon. In this case, there is another major factor, and that is the fact that in answers to interrogatories plaintiffs representatives under oath in a document filed in the case of public record stated that there had been, in fact, a taking.. If physical appropriation is something known only to the plaintiff when they allege in answers to interrogatories, and make an admission like that that there has been, in fact, a taking, that we feel is a major decisional circumstance.
Based on the totality of circumstances in this case we feel that there has clearly been a taking. Therefore we feel that there can be no abandonment.”

Not only was there no evidence of physical possession or appropriation to its public purposes by the appellant but, on the contrary, there was an explicit concession by the appellee’s attorney that "there was no physical entry on the property” and "the property is still as it was in 1979.” In addition, there were three commercial leases (from which the appellee was collecting rents) in existence before and during the entire period of this litigation.

Based on the foregoing there was neither positive possession by the appellant nor negative influence on the appellee’s actual possession and use. The court gave no weight to either the actual possession of the appellee or to the existence of the leases but rather referred to the appellant’s interrogatory answer as to the date of taking as "a major decisional circumstance.” We find that the court misread both the statute and Hardesty and was clearly erroneous in its evidentiary conclusions.

We accept the appellant’s argument that "clearly the intent of the answer was not to indicate that possession and appropriation had occurred but rather to indicate a date of valuation, concepts often confused in this area.” State Roads Commission v. Adams, 238 Md. 371, 375, n 2, 209 A.2d 247 (1965).

For the proposition that the interrogatory answer "is clearly not conclusive on the State Roads Commission,” Safeway Trails, Inc. v. Smith, 222 Md. 206, 214, 159 A.2d 823 (1960) is cited in which the Court of Appeals held:

"... that if an inconsistency appears between statements in a pre-trial deposition and testimony at the trial, the weight and credibility of the testimony are for the jury.”

and that the

"... answers of the adverse party became substantive evidence — sworn, although not conclusive, admissions of fact.” (Emphasis supplied.)

In the case subjudice the answer of the appellant that a taking had taken place on January 26, 1979 involves both law and fact and, therefore, was not conclusive as to if and when a taking had occurred.

With relation to the concession by appellee’s attorney that there was no physical taking the appellant refers us to Salisbury Beauty Schools v. St. Bd., 268 Md. 32, 300 A.2d 367 (1967), wherein Judge O’Donnell for the Court of Appeals stated:

"The actions of an attorney within the scope of his employment are binding upon his client under the ordinary principles of agency.” (Cites omitted.) "This is particularly true concerning the stipulation of counsel in open court.” (Cites omitted.) Id. at 45, 46.

In 2 Nichols on Eminent Domain (3rd ed.) 6.1 (1) p. 6-16, we find:

"A mere declaration of an intention to take or even a threat to take, cannot constitute a taking under the fifth amendment.”

In Hardesty, supra at 34, the Court of Appeals held:

"The petition filed by the Commission in the present case sought to condemn a scenic easement, together with the right of ingress or egress across the right-of-way lines along the 4.4 acres of the property fronting on the highway, and the right to erect snow fences within 100 feet of the land condemned. As previously indicated, the Commission’s petition to abandon the condemnation proceeding alleged simply that no taking had occurred. The only evidence adduced at the hearing in support of the Commission’s petition to abandon consisted of a stipulation that 'there had been no physical appropriation, no physical taking of the property’ and that the scenic easement to be acquired was 'for the purpose of leaving the trees there.’ Considering the position taken by the Commission that physical entry upon the property was required before a taking could be mandated, the skimpy evidentiary record before us, the character of the property interest at stake, the immediate entry procedure employed by the Commission in undertaking to condemn the property, the fact that the public enjoyment of the scenic beauty of the property was immediate, the length of time involved before the Commission elected to abandon condemnation, and the legal restrictions placed upon the property during the pendency of the condemnation proceedings, we conclude that Hardesty was deprived of the full use and enjoyment of his property by the Commission’s action to a degree sufficient to constitute a taking within the contem plation of § 12-102 of the Real Property Article. See Stevens v. City of Salisbury, supra. The Commission cannot, therefore, totally abandon the condemnation proceedings it initiated on August 1, 1973.” (Emphasis supplied.)

Before setting out the foregoing upon which the Court of Appeals based its holding, Chief Judge Murphy, for the Court, defined the scenic easement involved as a "negative easement”:

"The concept of a scenic easement according to Kamrowski v. State, 31 Wis.2d 256, 263, 142 N.W.2d 793, 796 (1966) 'springs from the idea that there is enjoyment and recreation for the travelling public in viewing a relatively unspoiled natural landscape ....’ One federal statute defines a scenic easement as 'the right to control the use of land . .. for the purpose of protecting the scenic view ... but such control shall not affect, without the owner’s consent, any regular use exercised prior to the acquisition of the easement.’ 16 U.S.C.A. § 1286 (c) (1970). A scenic easement has otherwise been characterized as a negative easement or servitude precluding the owner of land from doing an act which, if no easement existed, he would be entitled to do:
'Negative easements involve the payment to the landowner for a termination or extinguishment of a portion of his property rights. Scenic easements are an example: the landowner is paid by the state to terminate his right to erect structures or buildings or otherwise use his land so as to destroy the view from the highway. The state obtains no rights to enter upon the land, either for its departments or for the public at large. The state obtains only the right to enforce the negative easement through court action.’ (Emphasis supplied.)
Comment, Progress and Problems in Wisconsin’s Scenic and Conservation Easement Program, 1965 Wis. L. Rev. 352, 360 (1965).” 276 Md. at 30 (Emphasis supplied.)

Judge Murphy pointed out that the property owner-appellant had argued "that the occupancy or possession of a scenic easement is visual, not physical; that it is a negative easement prohibiting the landowner from altering the scenic nature of his land . .. that . .. the . .. easement was along a well-travelled highway . . .” that the property owners "refrained for 10 months from taking any action inconsistent with the scenic easement” and, therefore, "the property was possessed by the public and appropriated to the purposes of the Commission.” This, the appellants in Hardesty argued, coupled with the payment into court and the withdrawal of the sum deposited, amounted to a taking. The State, the appellee in Hardesty, argued that before a taking occurs within the meaning of Real Property Section 12-102 there must be a physical entry and that the mere filing of the plot and the posting of money is not sufficient, however the Court of Appeals pointed out that there can be a taking without either the divesting of the owner of his title or "without actual physical appropriation, entry or seizure ...The Court quoted selected parts from Nichols, Eminent Domain, Sec. 6.1 (1) (3rd ed. 1970). For the purpose of this opinion we will set out the complete paragraph from which the Court of Appeals quoted in part:

"Constitutional rights rest on substance, not on form, and the liability to pay compensation for property taken cannot be evaded by leaving the title in the owner, while depriving him of the beneñcial use of the property. It has already been shown that a legal restriction upon the use of land may constitute a taking, although the title is unaffected and the land is physically untouched, and the same is true when the owner’s enjoyment of the land is physically interfered with, although his legal rights remain unimpaired. However, just how severe the interference with the owner’s enjoyment of his property must be to constitute a taking, and to render a statute authorizing the injury, but providing for no compensation, unconstitutional, is not a question which can be answered in such a way as to furnish a concise rule readily applicable to all cases likely to arise. Each case must be decided on its own merits until, by the gradual process of judicial exclusion and incusion, it is possible to say on which side of the line any given injury to private property rights may be said to fall. In a general way, however, it may be said that when an interference with the use and enjoyment of land that would be actionable at common law is effected under legal authority and as an incident to the construction of a public improvement, and consists of actual entry upon land and its devotion to public use for more than a momentary period, or of an injury of such a character as substantially to oust the owner from the possession of the land and to deprive him of all beneficial use thereof, there is a taking of property in the constitutional sense, whether there has been any formal condemnation or not. In the absence of such ouster or deprivation of all beneficial use, the inflicting of injury upon adjacent land by the proper construction and non-negligent maintenace of a legislatively authorized improvement does not constitute a taking.” (Emphasis added.)

In Hardesty, the Court of Appeals, citing Stevens v. City of Salisbury, 240 Md. 556, 214 A.2d 775 (1965), observed:

"... that not every injury to property involves a taking, that compensation for a taking may be exacted only for severe interferences which are tantamount to deprivations of use or enjoyment, and that whether there has been a taking is dependent on the facts of each case.” Id. at 32. (Emphasis supplied.)

From La Fontaine’s Heirs, 205 Md. 311, decided in 1953, before the passage of Section 12-102, the Hardesty Court quoted:

"The Constitutional prohibition against the taking of private property means: '* * * takingthe property from the owner, and actually applying it to the use of the public. It does not mean the preliminary measures necessary in such cases.’ Steuart v. Baltimore, 7 Md. 500, 516. (Emphasis in Steuart.)” 276 Md. at 32, 33.

The La Fontaine Court continued:

"The distinction between a possession which may be legal, yet not constitute a taking, and a possession and use which amounts to a taking is pointed up by Judge Chesnut in United States v. Certain Parcels of Land, etc., 61 F. Supp. 164, 169.” Id. 320-321.
"In United States v. Certain Parcels of Land, etc., supra, it is pointed out that even the title which the Federal Government takes under statute, which authorized immediate occupancy of land to be taken for public use, is defeasible, the Government being divested if there was no authority in law to take the property. This is so even though the statute expressly says that title is vested in the Government on the taking and the right to compensation shall correspondingly vest in the landowner.” 205 Md. at 322. (Emphasis supplied.)

The following is the holding in Steuart, 7 Md. 500 at 516, decided in 1855, and cited in La Fontaine, supra:

"Prohibition against taking private property until payment or tender of compensation is first made, and the right to have the amount of compensation settled by a jury or by agreement, are the important rights designed to be secured to the owners of property by the present constitution. And although the proposed street has been surveyed, the survey reported, and the damages and benefits assessed, yet the appellant’s land has not been taken, in the legal sense of that word. Bonaparte v. R.R. Co., 1 Baldwin C.C., 226. The constitutional prohibition against taking private property for public use, until compensation is first paid or tendered, means taking the property from the owner, and actually applying it to the use of the public. It does not mean the preliminary measures necessary in such cases. To hold that compensation must be paid or tendered, before a survey should be made, or other preparatory steps taken, would be a construction of the Constitution not required by its language, or necessary for the protection of private rights. It is quite a sufficient protection, if the owner is secured in the use and enjoyment of his property until the damages he may sustain are constitutionally ascertained, and paid or tendered.” (Emphasis supplied.)

The Maryland Court of Appeals in Steuart cited Bonaparte as authority for determining when private property is taken in a condemnation proceeding. Bonaparte was a case arising in Maryland decided in 1830 by Judge Henry Baldwin of the Circuit Court of the U.S. for the Third Circuit. With reference to when a taking occurs that requires compensation, Judge Baldwin stated:

"The first question arising is, for what compensation must be made; or, in other words, what is the taking ofprivate property for public use, by a canal, rail road, turnpike, or other improvement or work, to be constructed for public convenience? An entry on private property for the sole purpose of making the necessary explorations for location, is not taking it, the right remains in the owner as fully as before; no permanent injury can be sustained, nothing is taken from him, nothing is given to the company. When nothing further is done, it is competent for the legislature to give this authority, without any obligation to compensate for a damage which must be trivial....” (Emphasis supplied.)

and

"The duty of the legislature is to provide for compensation, and of the company to make it, simultaneously with the disseisin of the owner, and the appropriation of his property to the purposes of the law.” (Emphasis supplied.)

Although La Fontaine’s Heirs was decided before the passage of Real Property Article § 12-102, our research leads us to conclude that § 12-102 is the statutory enactment of what the law had been in Maryland since at least 1830.

All of the foregoing convinces us that a taking in a "quick take” condemnation procedure is at that point when the "authorized appropriation of land for public use has actually taken place,” La Fontaine’s Heirs, supra, and such appropriation has placed legal restrictions on the property for a period of time which causes "substantial interference with ... [the] property which destroys or lessens its value (or by which the owner’s right to its use or enjoyment is in any substantial degree abridged or destroyed),” Nichols, supra, and "possession” in some form has occurred.

In basing the court’s decision on Hardesty, the judge in the case subjudice found two major points: 1) the long period of time between the filing of the petition and the attempt to abandon; 2) the answer to the interrogatory in which the appellee responded that there had been a taking.

It appears that the court interpreted the answer to the interrogatory as an admission that the appellant did, in fact, possess and appropriate the property. The appellant said it, therefore it must be so. Cogito ergo sum. It has been conceded by both parties that the appellant did not take any possessory actions. The question is not whether the appellant said he took such action but whether, in fact, such action was taken. Taking is a matter of law. We find the reasoning of the trial judge erroneous.

In Hardesty the Court of Appeals said:

"... that Hardesty was deprived of the full use and enjoyment of his property by the Commission’s action to a degree sufficient to constitute a taking..Id. at 34.

After having previously held:

"... the right to abandon a condemnation proceeding ceases only when 'the authorized appropriation of land for public use has taken place.’ La Fontaine’s Heirs, supra, at 319.” Id. at 33.

Hardesty is distinguishable from the case before us. In Hardesty Judge Murphy, for the Court, carefully explained the nature of a scenic easement as an example of:

"... a negative easement or servitude precluding the owner of land from doing an act, which, if no easement existed, he would be entitled to do.. . .” Id. at 30.

At least three of the items considered by Judge Murphy in Hardesty are not present in this case; 1) the character of the property entered; 2) the immediacy of the public enjoyment; and 3) the legal restrictions on the property.

In this case there is nothing in the record before us that indicates that the appellant was prevented from the use of the subject property. On the contrary, there were in existence three commercial leases on the property when the petition was filed and the payment made into court. These leases continued in effect during the pendency of these proceedings and the appellee continued to collect and retain the rents.

Appellee’s counsel admitted that there was no physical entry and that "[T]he property is still as it was in 1979.” This was not a scenic easement of which occupancy or possession "is visual, not physical,” or property which "was possessed by the public and appropriated to the purposes of the Commission.”

It is not possible for the appellee to continue in its exclusive, unfettered use and enjoyment of its land including receiving the total proceeds from three leases and then claim that the appellant "has taken possession of the property and actually and lawfully appropriated it to the public purposes ----” Real Property Article § 12-102, supra.

For the reasons set out above, we find the trial court erred and we reverse.

Ruling denying State’s election to abandon condemnation reversed and case remanded for further proceedings.

Costs to be paid by appellant.

      . The Commission suggests that no taking occurred because it did not exercise its right to erect snow fences within 100 feet of the property. There is no evidence in the record, one way or the other, showing whether the Commission exercised this right. Assuming it did not, however, we would not thereby be persuaded that no taking of the scenic easement occurred.”

      . See Public Service Commission, et al. v. Highfield Water Company, et al., Court of Appeals, Misc. No. 8, Sept. 1980, filed February 26, 1982, at p. 14.