author: Davidson, J.,

text:
    HARLEYSVILLE INSURANCE COMPANY v. STEPHEN D. ROSENBAUM et al.
    [No. 247,
    September Term, 1975.]

      Decided January 29, 1976.

      The cause was argued before Moylan, Davidson and Melvin, JJ.

      Richard P. Rosche for appellant.

      William R. Hymes, with whom was John C. Corbley on the brief, for appellee Maryland Automobile Insurance Fund.
   Davidson, J.,

delivered the opinion of the Court.

On 3 January 1974, in the Circuit Court for Howard County, the appellee, Stephen D. Rosenbaum, filed a suit for a declaratory judgment against the appellants, Victor John Williams, Harleysville Insurance Company,, and the appellee, the Maryland Automobile Insurance Fund (the Fund). Rosenbaum sought a declaratory judgment, insofar as here relevant, that either Williams was an insured under a policy of insurance issued to him by Harleysville and was entitled to coverage for liability which might result from an automobile accident on 24 March 1973, or that Williams was an uninsured motorist, so that the Fund would be responsible for any such liability. The case was tried on 16 July 1974 before Judge T. Hunt Mayfield, sitting without a jury. On 2 December 1974, Judge Mayfield entered an order declaring that on 24 March 1973, Williams was insured by Harleysville, and was entitled to coverage with respect to the accident which occurred on that date. Harleysville’s motion for a new trial was denied on 14 January 1975, and on 13 February this appeal was filed.

The record shows that on 28 June 1972, Harleysville issued a policy of automobile liability insurance to Williams. The insurance policy provided in pertinent part:

“Definitions. . .
‘owned automobile’ means
(a) a private passenger, farm or utility automobile described in this policy for which a specific premium charge indicates that coverage is afforded,
(c) a private passenger, farm or utility 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, farm and utility automobiles owned by the named insured on the date of such acquisition and the named insured notifies the company during the policy period or within 30 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 ...” (emphasis added).

The policy covered a six month period and described Williams’ 1966 Plymouth as the only “owned automobile.” On 1 December 1972, Williams purchased a 1970 Chevrolet. There was evidence to show that at the time of purchase, one of the car dealer’s employees called Harleysville’s agent. On 28 December, the policy of insurance was renewed for a second six months without a change in the description of the insured automobile. On 24 March 1973, Williams was involved in an automobile accident while driving the Chevrolet. The lower court found that at the time of that accident the Chevrolet was a replacement for the Plymouth, and was the insured vehicle.

I

The appellant contends that the trial court’s finding that the Chevrolet was a replacement vehicle within the meaning of subsection (c) (1) of the definition of “owned automobile” as set forth above, is erroneous because Williams acquired and used the Chevrolet while he owned and could use the Plymouth. We do not agree.

The Court of Appeals has held that a finding on the question of whether a newly acquired automobile is a “replacement” for an owned automobile described in an insurance policy is one of fact, which will not be reversed unless clearly erroneous. That Court has also held that evidence which shows directly or supports a rational inference that the owned automobile described in the policy was inoperable at the time of the acquisition of another car, is sufficient to support the finding that the newly acquired car was a “replacement.”

There was evidence here to show that the Plymouth was inoperable and was towed to the dealer’s lot when the Chevrolet was purchased in December, 1972, and that it stayed on the lot without license plates “maybe for six months,” and was “no good, of no value ... a five dollar car,” and was finally given away to “Jerry’s Auto Parts.” In addition, there was evidence to show that Williams had “only operated one car at a time.” There was also evidence to show that Williams applied for new license tags for the Plymouth on 5 April 1973, certifying that Harleysville insured that car, and that on 20 April 1973, Williams was involved in an accident while driving the Plymouth. The evidence was sufficient to support findings that the Plymouth was inoperable and was not owned by Williams on 24 March 1973, and was subsequently reacquired by Williams. The trial court’s finding that on 24 March 1973, the Chevrolet was a replacement automobile covered by the policy was not clearly erroneous.

II

The appellant next contends that the trial court’s finding that the Chevrolet was a replacement automobile is erroneous because the Chevrolet was not acquired by Williams during the policy period as required by subsection (c) of the definition of “owned automobile” set forth above. Again we do not agree.

In Maryland Indemnity and Fire Insurance Exchange v. Steers, the insured, in December, 1955, was issued an automobile liability insurance policy, covering bodily injury and property damage liability, for a one year period. The policy designated an Oldsmobile as the insured automobile. Before April, 1956, the Oldsmobile became inoperable. Nevertheless, on 1 April, the insured renewed its license plates because he expected to “get it running again.” In May, the insured purchased a Dodge, which he thereafter used, leaving the Oldsmobile “standing in the street,” still licensed. In December, 1956, the insured was issued a renewal insurance policy, which repeated the designation of the Oldsmobile as the insured automobile. In March, 1957, the insured renewed the license plates on the Dodge but failed to renew those on the Oldsmobile, which then became legally, as well as physically, inoperable. Later that same month, the insured bought a Ford, and transferred the license plates from the Dodge to the Ford. He did not then notify the insurer of the transfer. The insured bought a Pontiac in October, 1957, which he never registered or operated. In November, 1957, the insured was involved in an automobile accident while operating the Ford. He reported the accident to the insurer, and one week later caused the insurer to designate the Ford as the insured automobile in place of the Oldsmobile.

In the Court of Appeals, the insurer asserted nonliability on the ground, in relevant part, that the designation in the renewal policy, of the Oldsmobile as the insured car was a misrepresentation by the insured as to the identity of the insured car. It maintained that consequently the policy was void from the date of renewal. The Court found that even if the designation of the Oldsmobile on the renewal policy were a “misrepresentation,” it was not “material” to the risk of property damage or bodily injury liability, which was the extent of the policy coverage. The Court said:

“Most important of all, we think, is the fact that the insurance policy itself contained a provision which made it applicable to any newly acquired vehicle which replaced an insured automobile, and provided that the liability insurance thereby afforded and here involved should become effective as to the newly acquired automobile without notice of the replacement.”

Thus the Court held that under an insurance policy which does not require notice of the replacement of the designated automobile, coverage is not terminated because the policy is renewed after the designated automobile has been replaced. In reaching this result, the Court recognized that the kind of car is immaterial to the insurer’s risk of liability to a third person for property damage and bodily injury, when it said:

“[IJnsofar as liability insurance was concerned, Indemnity was almost, if not completely, indifferent to the substitution under the policy of an automobile acquired as a replacement for the vehicle already described.”

Harleysville contends that Maryland Indemnity is inapplicable. It asserts that under its policy notice of replacement is required. Here, unlike Maryland Indemnity, the policy does not expressly provide that “notice is not required ... if the newly acquired automobile replaces an owned automobile covered by this policy.” Subsection (c) (1) set forth above, applicable to replacement automobiles, contains no express provision relating to notice. Subsection (c) (2) set forth above, applicable to additional automobiles only when the company insures all automobiles owned by the insured, requires notice within the policy period or 30 days of acquisition. Because (c) (1) is separated from (c) (2) by the disjunctive word “or,” the notice requirement does not apply to replacement of the designated automobile. The policy is clear and unambiguous. Here, as in Maryland Indemnity, the policy contains no requirement of notice that the designated automobile has been replaced.

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.

Courts of other states have recognized that the language “acquired during the policy period” does not preclude an automobile acquired in a given policy period from being insured in a renewal period. In cases involving policy provisions similar to (c) (2) set forth above, courts have held that if the required notice has been given, an additional automobile acquired in a given period is insured in a renewal period, even though the additional automobile is not designated in the renewal policy. The underlying rationale of these cases is that once the insured has done all that is required of him, the newly acquired automobile is insured just as if it were described in the policy. Thus when that policy is renewed, the newly acquired automobile is the insured automobile, even though not so designated in the renewal policy.

Applying this rationale to the instant case produces a clear result. Here the insured’s policy did not require notice of the acquisition of a replacement automobile. Nor did it require anything else in order for the insured to obtain coverage for a replacement automobile. Since there was nothing required of the insured, the Chevrolet became the insured automobile on the day of its acquisition, when it became the replacement for the Plymouth, and remained the insured automobile when the policy was renewed.

Further support for the conclusion that the language “acquired during the policy period” appearing in section (c) set forth above, does not preclude coverage of a replacement automobile as defined in subsection (c) (1), during a renewal period, is found in the language of subsection (c) (2), which authorizes notification of the acquisition of additional automobiles during the policy period or within 30 days of acquisition. Since acquisition may occur upon the last day of the policy period, this provision establishes that notice may be given after the policy has been renewed. Under such circumstances, the additional automobile, acquired in the previous policy period, would be insured. Similarly, under subsection (c) (1), a replacement automobile acquired in a previous policy period would be insured in a renewal period.

Under the present circumstances, we are persuaded that the Chevrolet acquired in the original policy period was a replacement automobile which was insured during the renewal period. The trial court’s judgment in this respect will be affirmed.

Ill

There was evidence to show that Williams did not give written notice to Harleysville of the details of the 24 March accident involving the Chevrolet. By 11 April 1973, Harleysville had received notice of the occurrence from someone other than the insured. Thereafter, Harleysville wrote two letters to Williams urging him to comply with the contract notice and cooperation clauses, the second of which, dated 25 May 1973, stated that the failure to comply would result in a disclaimer of coverage by Harleysville. Two attempts to reach Williams by telephone were made, and on one occasion an agent went to his home. All these efforts were unsuccessful. On 14 August 1973, Harleysville wrote another letter to Williams, this one concerning the 20 April 1973 accident involving the Plymouth. Within a week, in response, Williams made a report of that accident either in person or by telephone. The 24 March accident involving the Chevrolet was not discussed. Harleysville ultimately disclaimed liability for the 24 March accident. Williams died on 1 February 1974, before this suit for a declaratory judgment came on for trial.

Harleysville contends that it was entitled to disclaim liability under its policy because Williams breached the “notice” and “assistance and cooperation” provisions of the policy. It asserts that it suffered actual prejudice as a result of that breach, because the insured died before trial, without having given Harleysville any account of the accident. Again we do not agree.

The Maryland Insurance Code provides:

“DISCLAIMER OF COVERAGE BECAUSE OF LACK OF NOTICE OR COOPERATION FROM INSURED:
Where any insurer seeks to disclaim coverage on any policy of liability insurance issued by it, on the ground that the insured or anyone claiming the benefits of the policy through the insured has breached the policy by failing to cooperate with the insurer or by not giving requisite notice to the insurer, such disclaimer shall be effective only if the insurer establishes, by a preponderance of the affirmative evidence that such lack of cooperation or notice has resulted in actual prejudice to the insurer. ’’(Emphasis added.)

In order to show “actual prejudice,” it is necessary to show an act on the part of the insured “which had or could have had any effect upon the jury which induced them or in any way caused them to render the verdict against himself.” Stated another way, the insurer must establish a substantial likelihood that if the cooperation or notice clause had not been breached, the insured would not have been held liable. In determining whether any act of the insured may have affected the jury, and created a substantial likelihood that the verdict would be against him, something more than the facts adduced to show that the insured breached the cooperation or notice clause must be presented. It is necessary to have available the facts and circumstances surrounding the accident which is the basis for the claim against the insured, because a finding of actual prejudice inherently depends to some extent upon the closeness of the case.

These principles were recognized in Warren v. Hardware Dealers Mutual Fire Insurance Co. There the Court of Appeals found that the trial court acted prematurely, in deciding in a declaratory judgment suit prior to a trial of the issue of negligence, that the insurer was entitled to disclaim liability because it was prejudiced by the insured’s failure to cooperate. The insured had promptly notified the insurer of the accident and its surrounding details. Thereafter, investigators seeking further information repeatedly but unsuccessfully attempted to reach him. Some months later, the insured gave another written statement to an investigator. As the time for trial approached, a third investigator spent more than a week attempting to locate the insured, and failed. In addition, the pleadings in the damage suit were not sent to the insurer by the insured, but rather by the attorney for the plaintiff. The insured failed to keep appointments with the insurer’s attorney, and failed to reply to his letters, even after being informed that the insurer would no longer represent him. There the Court recognized that evidence of the failure of the insured to cooperate may establish a breach of the policy’s cooperation clause, but cannot in and of itself establish that that breach resulted in actual prejudice to the insurer. It then said:

“[S]ince it was conceded at the argument that the insurer would not be prejudiced should the insured appear and testify at a trial, the case will be remanded for trial on the merits. Prior thereto every reasonable effort should be made to locate and notify the insured of the trial date. At the trial, the insurer should defend the case but without prejudice to its ultimate rights. Should the insured not appear and the evidence produced jits tifies finding a verdict for the plaintiffs against the defendant, the lower court would then be in a better position to decide whether or not the insurer should be relieved from payment of the judgment for failure of the insured to cooperate.” (Emphasis added.)'

Here, the evidence presented concerning the events preceding the insurer’s disclaimer was relevant to the question of whether a breach of the policy’s notice and cooperation clauses had occurred. Assuming without deciding that there was such a breach, that evidence was insufficient in and of itself to establish actual prejudice. In this case, unlike Warren, it is certain that Williams, now deceased, will not appear at the trial. We nontheless believe that here, as in Warren, the trial court, after a trial of the negligence action in which evidence of the facts and circumstances surrounding the accident will be presented, will be in a better position to decide whether, given the closeness of the case, the actions of Williams affected the jury’s verdict and therefore whether the insurer suffered actual prejudice. The trial court’s finding that Harleysville was not actually prejudiced is premature and will be vacated. At a trial of the pending negligence action, Harleysville should defend the case, but without prejudice to any of its ultimate rights. The question of Harleysville’s right to disclaim because of actual prejudice may be resolved when and if a judgment against Williams is obtained in that proceeding.

Declaratory order affirmed in part and vacated in part in accordance with this opinion.

Costs to be paid by appellant.

      . On 9 April 1974, a suggestion of Williams’ death was filed, and the personal representative of his estate was substituted as a party defendant.

      . On 3 July 1973, Rosenbaum had filed a suit against Williams for damages alleging both property and personal injuries suffered in that accident.

      . Maryland Indem. & Fire Ins. Exch. v. Steers, 221 Md. 380, 387, 157 A. 2d 803, 807 (1960); Maryland Rule 1086.

      . Maryland Indemnity, supra, 221 Md. at 388, 157 A. 2d at 808; see Allstate Ins. Co. v. Government Employees Ins. Co., 202 S.E.2d 640, 642 (S. C. 1974).

      . 221 Md. 380, 157 A. 2d 803 (1960).

      . 221 Md. at 385,157 A. 2d at 806.

      . 221 Md. at 386, 157 A. 2d at 807.

      . Carey v. State Farm Mut. Ins. Co., 247 F. Supp. 381 (E.D. Va. 1965), aff'd 367 F. 2d 938 (4th Cir. 1966); Hughes v. Glens Falls Ins. Co., 485 P. 2d 597, 599 (Ariz. App. 1971).
      If timely notice is not given, an additional automobile acquired in a given period will not be insured in a renewal period. Southern Guar. Ins. Co. v. Wales, 218 So. 2d 822, 827 (Ala. 1969); American Motorists Ins. Co. v. Carver, 80 Cal. Rptr. 332, 334-35 (App. 1969); Pennsylvania Thresh. & Farmer’s Mut. Cas. Ins. Co. v. Traister, 173 So. 2d 153, 155-56 (Fla. App. 1965); Barrett v. State Farm Mut. Auto. Ins. Co., 236 So. 2d 900, 904 (La. App. 1970).

      . Mattox v. Pennsylvania Thresh. & Farmer’s Mut. Cas. Ins. Co., 160 So. 2d 458, 462-63 (Ala. 1964).

      . The insured was required to give written notice of any accident, containing his name, the time, date, place and circumstances of the accident, and the names of injured persons and witnesses. He was also required to cooperate with the company in the conduct of suits and settlement efforts, to attend hearings and trials, and to assist in securing evidence.

      . Md. Ann. Code (1957, 1972 Repl. Vol.) Art. 48A, § 482.

      . United States Fid. & Guar. Co. v. Williams, 148 Md. 289, 307, 129 A. 660, 667 (1925). Before the enactment of Art. 48A, § 482, a showing of prejudice was required to support a disclaimer of liability founded upon a breach of the cooperation clause in an insurance policy, but not for a disclaimer founded upon a breach of a notice clause. Travelers Ins. Co. v. Godsey, 260 Md. 669, 673, 273 A. 2d 431, 434 (1971). Under these circumstances, the standard previously applicable to establish prejudice in lack of cooperation cases can appropriately be applied where a disclaimer of liability is founded upon either lack of cooperation or lack of notice.

      . Northwestern Title Sec. Co. v. Flack, 85 Cal. Rptr. 693, 697-98 (App. 1970).

      . MFA Mut. Ins. Co. v. Sailors, 141 N.W.2d 846, 849 (Neb. 1966).

      . 244 Md. 471, 224 A. 2d 271 (1966).

      . 244 Md. at 477, 224 A. 2d at 274.

      . In Brohawn v. Transamerica Ins. Co., the Court of Appeals in dicta said:
      “[W]here an insurance company claims lack of coverage because of the insured’s failure to comply with contract provisions such as the cooperation or notification clause, or failure to pay premiums, a declaratory judgment would ordinarily be appropriate and should be granted.” 276 Md. 396, 347 A. 2d 842, 848 (1975).
      We here follow the holding in Warren, supra.


source: Caselaw Access Project

author: Moore, J.,

license: Public Domain

text:
    WILEY MANUFACTURING CO. et al. v. ROBERT LESLIE WILSON et al.
    [No. 337,
    September Term, 1975.]

      Decided January 29, 1976.

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

      Alfred M. Porth and Theodore B. Cornblatt, with whom were Smith, Somerville & Case on the brief, for appellants.

      A. Harold DuBois, with whom were Verderaime & DuBois, P.A., A. Freeborn Brown, Stanley Getz and Brown, Brown & Lanaham on the brief, for appellees.
   Moore, J.,

delivered the opinion of the Court.

Taking a short cut via a railroad right of way to a company parking lot located some 790 feet from the plant where they were employed, two co-workers were seriously injured and their companion was killed when they were struck by a train. In the workmen’s compensation case which followed, the claimants prevailed before the Workmen’s Compensation Commission and its awards were affirmed by the Circuit Court for Cecil County. The question presented on this further appeal by the Employer and Insurer is whether the court erred in holding that under exceptions to the “going and coming” rule * the injuries and death arose out of and in the course of employment of the three men in accordance with the requirements of the Workmen’s Compensation Act, Art. 101, Maryland Code Annot., § 15 (1975 Cum. Supp.).

I

The claims of the two survivors and that of the widow of the decedent were consolidated. The pertinent facts as contained in the record before the Workmen’s Compensation Commission received into evidence below and in testimony before the Circuit Court are these: The claimants, Franklin Jones and Robert Wilson, and the decedent, Arthur Brewer, were employed by the Wiley Manufacturing Company, a steel fabricator and medium-sized shipyard at Port Deposit, Maryland. As shown on the plat submitted in evidence and appended to this opinion, the plant is enclosed by a ten foot fence and is situated along the main line tracks of the Penn Central Railroad which run in a north-south direction. The entrance to the plant is on Ferry Street which crosses the railroad tracks and dead-ends at the plant entrance. At that location there are the customary railroad warning devices for vehicular and pedestrian traffic.

The Wiley Company had a total work force of approximately 350 men, on two shifts. It maintained employee parking lots, one of which was designated “North Parking Lot,” and was located approximately 790 feet north of the plant entrance, abutting Main Street. Street access to this parking lot was by way of Ferry Street and Main Street. Somewhat shorter access was by way of the Penn Central Railroad tracks. The lot was not fenced.

Approximately 30 trains — mostly freight — used the tracks daily, some consisting of as many as 100 cars. Between 50 and 100 men walked the tracks every day to the North Parking Lot and most continued to do so even after the accident.

Franklin Jones and the decedent, Arthur Brewer, were employed as welders. Mr. Wilson was a shipfitter, first class. On March 21, 1974 their work day began at 7:30 a.m. when they were released from work at 1-1:30 a.m. They punched inside the plant entrance. Because of inclement weather they were released from work at -1:30 a.m. They punched out at the time shack at that time, and by prearrangement, they were to ride home together in Mr. Jones’ car which he had parked in the North Parking Lot. Instead of walking to the parking lot by way of Ferry Street and Main Street, they made their way north along the main line Penn Central Railroad tracks. (Jones had been using the tracks for five years and Wilson more than ten.) A train was stopped on the southbound track with its engines running. After the men had been walking a short time and had travelled approximately 350 feet from the time shack, they were struck from the rear by a train on the northbound track. The survivors said that because of the noise from the southbound train they had not become aware of the approaching northbound train.

Employees of Wiley Manufacturing Company were paid only from the time they punched in until the time they punched out and were free to choose their own means of transportation and, of course, their route to and from work. The parking lot was a “fringe benefit”. The company did not own the property on which the railroad tracks were located and exercised no control over it. After the accident in this case warnings were issued by the company against the use of the tracks by the workers. These consisted of verbal admonitions by a guard stationed at the public crossing as well as printed statements in pay envelopes that the employees were forbidden by law to trespass on the railroad property. Prior to the accident the workers had never been advised or instructed by management not to use the tracks. There was, however, a posted notice of Penn Central that “All persons are forbidden to enter, cross over or trespass upon this property, under the penalty provided by law.”

The lower court, in a detailed written opinion, rejected the contentions of the Employer and Insurer that the injuries and death did not arise out of and in the course of employment. Rather, the court held:

“At the time of the accident the claimants were in close proximity to the employer’s plant between the plant and the parking lot maintained by the employer at an appropriate time on a route customarily used by other employees, which was a direct and convenient way of ingress or egress to the plant from the parking lot, and used by said employees with the implied consent of the employer. Therefore, this case falls within the exceptions to the general rule and the injuries sustained by the claimants are compensable.” (Emphasis added.)

II

The “exceptions” to the general going and coming rule recognized in Maryland and to which the lower court referred are the “proximity rule” and the “premises rule”.

The elements of the “proximity rule” were defined by Chief Judge Murphy in Stoskin v. Board of Education of Montgomery County, 11 Md. App. 355, 274 A. 2d 397 (1971), supra, n.1. Upon the authority of Maryland Paper Products Company v. Judson, 215 Md. 577, 139 A. 2d 219 (1958) citing 8 Schneider, Workmen’s Compensation, § 1724 (1951) and Pariser Bakery v. Koontz, 239 Md. 586, 212 A. 2d 324 (1965), the proximity rule was explained in Stoskin to mean that an employee is in the course of his employment while coming to or going from his work when, although off the actual premises of his employer, the employee is:

(1) In close proximity to the premises;

(2) Proceeding diligently at an appropriate time by reasonable means;

(3) Using the natural, practical, customary, convenient and recognized way of ingress or egress;

(4) Traversing land under the control of the employer, or on adjacent property with the express or implied consent of the employer.

The Court in Stoskin also observed that the rule, as analyzed in Pariser Bakery, supra, “allows compensation for an injury to an employee when, under the special facts of the case, the employment itself involved peculiar and abnorma’ exposure to a common peril which is annexed as a risk incident to the employment.”

The rule was held to be unavailing in Pariser Bakery where the employee, a dough mixer, had completed his work, dressed in the locker room and punched his time card. He then walked outside and was struck on the sidewalk, about seven feet beyond the building line, by an automobile out of control. Judge Marbury stated that, “[t]o allow recovery under the facts presented in this case would convert the proximity rule into a general rule applying to any street upon which a business might front.” 239 Md. at 591.

Application of the proximity rule was also withheld in Stoskin, supra, where the appellant, a school teacher, was being driven to work by a friend. When she arrived outside the school grounds, carrying an armful of school books, she was injured as she alighted from the vehicle and stepped on a Coca Cola bottle which rolled out of the car and landed beneath her feet. She slipped and fell within the public right of way. This Court held that the lower court correctly decided that the proximity rule did not apply because the claimant was not by reason of her proximity to the school subjected to any special danger different from that to which the general public was subjected.

On the other hand, in Pappas v. Modern Manufacturing Co., 14 Md. App. 529, 287 A. 2d 798 (1972) a lower court holding that the proximity rule was inapplicable was reversed. There, the employee slipped on some ice and fell, fracturing her right arm, while she was still on a parking lot provided by the employer and where access to the building where she worked was by way of a ten foot alley between the building and the parking lot. Writing for this Court, Judge Anderson stated that the case was controlled by the holding of the Court of Appeals in Proctor-Silex v. DeBrick, 253 Md. 477, 252 A. 2d 800 (1969), infra.

The “premises rule”, also a creature of case law, is designed to allow compensation for injuries sustained before or after actual working hours while on the premises of the employer and/or under an extension of the literal concept of “premises”. Larson, supra, § 15.12; Salomon v. Springfield Hospital, 250 Md. 150, 242 A. 2d 126 (1968); Proctor-Silex Corp. v. DeBrick, supra; Saylor v. Black & Decker Manufacturing Co., 258 Md. 605, 267 A. 2d 81 (1970).

Speaking for the Court of Appeals in Salomon, supra, Judge Marbury articulated the “premises rule” in the following context:

“. . . we recognize that ordinarily an employee who has arrived on his employer’s premises as usual, in preparation for beginning his day’s work, is considered to be on the premises and therefore covered by workmen’s compensation even though his actual employment has not begun. . . .” 250 Md. at 155. (Emphasis added.)

And in Proctor-Silex, supra, where an employer’s parking lot in Baltimore County was located across Coolidge Avenue from the employer’s plant and the employee was injured when she slipped and fell as she was crossing from the parking lot to the building in which she was employed, the injuries were held to be compensable. In a comprehensive opinion reviewing Maryland cases and leading cases in other jurisdictions principally involving the subject of “premises”, Judge Smith quoted from Larson, op. cit., supra, § 15.41, with respect to parking lots:

“As to parking lots owned by the employer, or maintained by the employer for his employees, the great majority of jurisdictions consider them part of the premises whether within the main company premises or separated from it.” (Emphasis added.)

Maryland follows the majority rule. Giant Food v. Gooch, 245 Md. 160, 225 A. 2d 431 (1967); Smith v. General Motors Assembly Division, 18 Md. App. 478, 307 A. 2d 725 (1973); Pappas v. Modern Mfg. Co, supra.

Travel between two parts of an employer’s premises, the subject fundamentally involved in this appeal as it was in Proctor-Silex, is the subject of a general rule enunciated in Larson, § 15.14 also quoted by Judge Smith:

“One category in which compensation is almost always awarded is that in which the employee travels along or across a public road between two portions of his employer’s premises, whether going and coming, or pursuing his active duties.
“Since, as shown later, a parking lot owned or maintained by the employer is treated by most courts as part of the premises, the majority rule is that an injury in a public street or other off-premises place between the plant and the parking lot is in the course of employment, being on a necessary route between the two portions of the premises. But if the parking lot is a purely private one, the principle of passage between two parts of the premises is not available, and an employee crossing a public street to get to the parking lot is not protected.” 253 Md. at 482, 483. (Emphasis in Proctor-Silex.)

As we read Proctor-Silex, Judge Smith found it unnecessary to make a precise application of either the “proximity rule” or the “premises rule” in finding the injuries compensable. The narrow holding there — found by this Court to be controlling in Pappas, supra — was as follows:

“Where, as here, the claimant had arrived on the premises of her employer and was proceeding without deviation of any kind directly to her work, it would be unreasonable to hold that injuries sustained by her on the parking lot or between the building entrance and the time clock would be compensable, but injuries sustained between the parking lot and the building entrance would not be compensable. Therefore, we hold the injuries sustained by [claimant] to have arisen out of and in the course of her employment.” At 489. (Emphasis added.)

The decision in Proctor-Silex, while illuminating the issues involved in the instant appeal, is not here of controlling effect as in Pappas. In Proctor-Silex, there was only one means of access to the plant from the parking lot; and this was also the situation in Pappas. The crucial question in the instant appeal is whether the use by the three men of the Penn Central tracks, rather than the available public streets, constituted the use of an off-premises place between the plant and the parking lot such as to render the injuries and death non-compensable. On this issue, under similar facts, there is no direct Maryland authority, and we look elsewhere for precedential guidance.

Ill

The Supreme Court of the United States has had occasion in two leading cases to rule on the compensability of injuries sustained on railroad tracks near the employees’ places of employment. Cudahy Co. v. Parramore, 263 U. S. 418 (1923); Bountiful Brick Co. v. Giles, 276 U. S. 154 (1928). In both of these cases Mr. Justice Sutherland, writing for the Court, upheld the Workmen’s Compensation Act of Utah as not violating the Due Process Clause of the Fourteenth Amendment.

In Parramore, the claimant’s only route to the plant in which he worked was across the tracks of the Rio Grande Western. His auto was struck by a train and he was killed seven minutes before he was to begin his work as an engineer. The Court affirmed an award of compensation, without reference to the “going and coming” concept but with emphasis upon the hazard attendant upon ingress and egress:

“Here the location of the plant was at a place so situated as to make the customary and only practicable way of immediate ingress and egress one of hazard. Parramore could not, at the point of the accident, select his way. He had no other choice than to go over the railway tracks in order to get to his work; and he was in effect invited by his employer to do so. And this he was obliged to do regularly and continuously as a necessary concomitant of his employment, resulting in a degree of exposure to the common risk beyond that to which the general public was subjected.” 263 U. S. at 426.

Mr. Justice Sutherland’s statement concerning claimant’s inability to reach the plant via another route would, standing alone, seem to preclude compensation in the case before us. In Giles, however, on facts not dissimilar to those presented here, the Parramore decision was extended when the Court affirmed an award of compensation to a worker who was killed as he took a short cut along the right of way of the Bamberger Electric Railroad.

The opinion in Giles makes it clear that the employer was quite aware of, and did not object to, its employees’ usual selection of the short cut in preference to the “long, circuitous and inconvenient” alternate route. 276 U. S. at 157. Mr. Justice Sutherland acknowledged that Giles “comes nearer the border line” of compensability than Parramore, but held that it nonetheless “falls within the principle of the Parramore case.” At 159. In addressing the issues of an employer’s implied consent to its employees’ choice of an unsafe route and of the significance, if any, of the employees’ status as trespassers upon the railroad’s right of way, the following language is particularly instructive:

“Since the only way of access to its brickyard from the east was across the railway tracks, the company necessarily contemplated the crossing of them by its employees. No definite line of travel being indicated by the company or followed by the employees, who, with the company’s full knowledge and acquiescence, habitually crossed wherever they saw fit, it results that, however the crossing was made, the risk thereby incurred was reasonably incidental to the employment and became annexed as an implied term thereof. If it were necessary to strengthen the implication of consent on the part of the company to the crossing by any way its employees chose to take, it would be enough to refer to the testimony of the manager, who, knowing of the practice, did not forbid it, but in effect approved it by warning Giles simply to be careful.
It is said that Giles was a trespasser upon the railroad right of way; but if that be established by the evidence, the answer is that, if the company, not being the owner, could under any circumstances defend upon that ground (Daltry v. Electric Light Co., 208 Pa. 403, 411-412), it cannot avail itself of the defense here because it consented to the trespass. ” At 159. (Emphasis added.)

Dean Larson notes that both of the above cases dealt with the Utah act, which, unlike the compensation acts of Maryland and most other states, provided compensation for employees whose accidental injuries arise out of or in the course of employment. See, Larson, § 15.13 where the author states:

“It is quite possible to argue [as does appellant in the instant appeal] that the real issue therefore went no further than ‘arising out of ’ employment, which is easier to prove here than ‘course of employment.’ However, the language and tone of the decisions leave no doubt where the Supreme Court stands on the issue even if it should arise under the usual conjunctive coverage clause.”

And, as the Kansas City Court of Appeals observed in Hunt v. Allis-Chalmers Mfg. Co., 445 S.W.2d 400, 408-9 (Mo. App. 1969), a case involving facts remarkably similar to those before us here:

“We cannot conceive that a different result would have been reached in those cases had the Utah law used the conjunctive wording [as in Maryland] rather than the disjunctive which was in fact used.”

In the Hunt case, a Missouri Pacific right of way separated an Allis-Chalmers plant from another firm’s parking lot. Allis-Chalmers’ employees were permitted t. use that lot and many of them did so. From the lot to the plant there were two routes — one directly across the unprotected right of way and into the plant and the other down an alley to a public street and thence across the tracks at an intersection protected by an automatic arm, bell and light signal device. The Court described the latter route as “longer, more circuitous and less convenient” and observed, from photographic exhibits, that “a well defined path . . . had been worn along [the short] route from the lot to the employer’s physical plant.” 445 S.W.2d at 404. Hunt was killed while crossing the tracks on the less safe shorter route. The Court noted the similarity of Hunt’s claim to Giles:

“[W]hether Mr. Hunt had chosen to use the church parking lot or the one he actually used, he was still required to cross railroad tracks adjacent to and in some proximity to the employer’s premises and expose himself, recurrently, to its hazard. As in Giles, a more circuitous and less convenient alternate route across the tracks was available. Also, as in Giles, Hunt’s employer, through its manager Scott, had knowledge of the practice of crossing the tracks at the two locations. Neither Hunt nor other employees were forbidden either to use the Stove Company parking lot, or to cross the right-of-way and tracks from that lot to and from work, although both practices had been known to the employer for several years. In fact, the very customary route used by the employees from that lot to the plant had also been known to the employer.” At 407. (Emphasis added.)

In concluding that Hunt’s death was compensable the Court stated:

“[W]e rely particularly on the rationale of the Giles case and others of like import. Under the particular facts of the case before us, we extend the off-premises rule to encompass the hazards of the railroad crossing which Hunt encountered while going to and returning from work as risks incident to the employment. The crossing was adjacent to the employer’s premises, and when used as an access route by its employees, an extension of them. We acknowledge the availability of an alternate and perhaps safer route from the Stove Company parking lot to the plant. We are not to be understood as holding that the existence of such an alternate route may not, under the proper circumstances, be a factor to be considered in determining whether the accident arose out of and in the course of employment. . . . We do hold that the existence and use of the Stove Company parking lot was known to and acquiesced in by the employer for several years. Its very location at the south edge of the right-of-way directed the use to be made of the adjoining tracks as a convenient route of access to the employer’s premises. The practice of crossing there was also of long standing, known by the employer for some time but was permitted to continue 'without remonstrance.” At 410. (Emphasis added.)

Other cases adopting Giles to support awards of compensation in somewhat similar circumstances include Johannsen v. Acton Construction Co., 119 N.W.2d 826 (Minn. 1963); Basinski v. Detroit Steel Corp., 64 A. 2d 459 (N. J. App. Div. 1949); Daly v. Edwards Engineering Corp., 257 A. 2d 730 (N. J. App. Div. 1969), aff'd 257 A. 2d 697 (N. J. 1969); and Reed v. Brown, 152 N.E.2d 257 (Ind. App. 1958).

In Johannsen construction workers chose to walk a short distance from their job site across railroad tracks to a luncheonette rather than take a longer route on city streets which would have afforded them a protected crossing. The Court, said, citing Giles:

“[The option] is not of great significance when viewed in the light of the facts of the case ... for the [route taken] was used regularly and customarily by the employees in going to and from the place where the work was being done.” 119 N.W.2d at 830.

Basinski involved a claimant who customarily walked from the plant where she worked along a route which took her across the tracks of the Delaware, Lackawanna and Western. The employer argued that her route was unauthorized and that her injuries, sustained when she tripped on a switch, were therefore not compensable. Judge Jacobs, later a Justice of the New Jersey Supreme Court, affirmed the compensation bureau’s award of compensation largely because claimant and other employees had used that route “openly and continually . . . over a long period of time and ... no objection whatever had been voiced.” 64 A. 2d at 460.

In Daly an employee was injured while driving his automobile across the tracks of the Erie Railroad adjacent to his employer’s premises. An alternate route avoiding the tracks was available to him. Citing, inter alia, Giles, Basinski, and Johannsen, the the court stated that:

“the fact that there may have existed an alternate means of ingress or egress to or from the employer’s plant, other than the one chosen by the employee, does not of itself bar petitioner from compensation.” 257 A. 2d at 732.

In affirming the compensation award below the court in Daly observed that the employer “never gave its employees any specific oral or written instructions as to which route they should use nor did it prohibit the use of [the route on which the accident occurred].” At 733.

Reed v. Brown concerned an employee who went home for lunch from his job at an orchard. On his return trip, while crossing the railroad tracks next to the orchard he was struck by a locomotive and killed. The employer argued that he could have crossed the tracks at a protected intersection and was therefore not entitled to compensation. The court ruled otherwise and, after quoting at length from Giles, noted that:

“[t]here [was] no stipulation or evidence that [the employer] had ever notified or warned decedent that he should not use this particular route nor that they suggested to him that he should use the other route.” 152 N.E.2d at 263.

Cases where compensation was not awarded are also instructive. See, e.g., Corcoran v. Fitzgerald, 58 N.W.2d 744 (Minn. 1953) and Drouin v. Chelsea Silk Co., 187 A. 904 (Conn. 1936). In Corcoran the employee fell while climbing a ten foot fence. He was attempting to save himself a walk to an open gate in the fence. Justice Knutson, who later as Chief Justice wrote the opinion in Johannsen, supra, stated that:

“where an employer does furnish a safe means of ingress and egress and the employe, for his own convenience, chooses not to use it but, instead, selects a more hazardous means of leaving the premises, not customarily used by employes, he steps outside the scope of his employment and it cannot then be said that an injury which he sustains while so leaving the premises arises out of his employment.” 58 N.W.2d at 746. (Emphasis added.)

The decision of the Supreme Court of Errors of Connecticut in Drouin reinstating the finding of the Compensation Commissioner that an award be denied, is especially noteworthy for its disclosure of the efforts made by the employer (and also the railroad) to keep employees from crossing the tracks by a route nonetheless customarily used. There the Chelsea Silk Co. was adjacent to the New York, New Haven & Hartford Railroad’s tracks in Mystic. Claimant’s decedent resided on a street which ended on the opposite side of the tracks. While crossing the tracks he was struck by a train and killed. He could safely have taken a public highway bridge over the tracks, a route which was about five times longer than the fatal short cut. According to the opinion, “People living in the vicinity of [decedent’s] street and working in factories south of the railroad had been in the habit of crossing the tracks at the place where the decedent was killed.” 187 A. at 905. The vital question, determinative of the appeal, was whether, as held by the lower court, the facts did not support the conclusion of the Commissioner that the decedent at the time of his death

(1) “[W]as not in a place where he had any right to be in connection with his employment by consent of his employer either express or implied’,”

(2) “[T]hat the hazard of crossing the railroad tracks was not annexed to his employment by consent, acquiescence or agreement of his employer;” and

(3) “[T]hat, on the contrary, he was in the act of trespassing on railroad property contrary to warning by both the railroad company and by the [employer], and that his death did not therefore arise out of and in the course of his employment.” At 905. (Emphasis added.)

The Commissioner’s findings were held to be fully warranted and conforming to law. The court first described efforts made by the railroad to stop individuals from using its tracks. These included posting “no trespassing” signs, the erection of a stone wall with a wire mesh fence atop it, using detectives to warn trespassers, and sending notice to the employer that its employees were engaged in the hazardous practice and that the railroad disclaimed liability should an accident ensue. Concerning the efforts of the employer to prevent the use of the tracks, the court observed:

“The defendant employer had tried to keep its employees from crossing there by posting this notice in its factory, together with a warning of the danger of crossing, disclaiming any responsibility resulting therefrom, and expressly forbidding its employees to cross. These notices were conspicuously posted on the employees’ bulletin board in the factory from 1933 through the entire period of the decedent’s employment up to and including the day of his death. Furthermore, at various times the employees had been given notice personally not to cross the tracks.” At 906. (Emphasis added.)

On the authority of Giles and of previously decided Connecticut eases, the rule of law applied in Drouin was that to render an employer liable for compensation for injuries sustained “outside of the premises,” resulting from some peculiar danger involved in going or coming, it must be shown that such danger

“. . . was a risk annexed to the employment by the employer’s contemplating and acquiescing in the use thereof by the employee.” At 906.

In the instant appeal, the employer issued no warnings to the workers until after the unfortunate accident and wat; fully aware that as much as 30 per cent of the total work force was using the tracks on a daily basis.

Appellants cite several cases in support of their contention that customary use of the dangerous route is a bar to compensation. We find them either distinguishable or inapposite.

In Christian v. Chicago & Illinois Midland R. Co., 105 N.E.2d 741 (Ill. 1952) the court ruled that the Illinois Workmen’s Compensation Act did not bar plaintiffs action in tort against a railroad where employees of the Peabody Coal Company were killed in an accident while enroute home after leaving their employer’s premises.

In Draper v. Railway Accessories Co., 189 S.W.2d 934 (Ky. 1945) no mention was made of Giles. Indeed, as far as we can determine, the only Kentucky opinion in which Giles has been cited is Gray v. Congleton, 93 S.W.2d 829, 830 (Ky. 1936) where it is used in collateral support of the truism that “[n]o exact formula can be laid down which will automatically solve every case.”

Draper, whose job was dismantling worn out railroad cars for salvage, was struck by a locomotive while walking home. The site of the accident was a section of the railroad yard removed from his duty station. While we cannot say with certainty that such accident would be compensable in Maryland, (see, Salomon v. State, supra) we note that Draper is cited by the Kentucky Court of Appeals in support of the statement:

“[W]e have not adopted the . .. rule (which generally prevails) that the employee is automatically covered simply because the accident occurred on the employer’s premises.”

Ratliff v. Epling, 401 S.W.2d 43, 44 (Ky. 1966). (Emphasis added.) Because Maryland follows “the rule which generally prevails,” at least to a greater extent than Kentucky, Proctor-Silex Corp. v. DeBrick and Saylor v. Black & Decker Mfg. Co., both supra, we are not persuaded that Draper is apposite here.

Williams v. Compensation Commissioner, 20 S.E.2d 116 (W. Va. 1942) represents a minority view. Giles was again not considered. Williams was a coal miner and lived in a house not owned by his employer, some 2 or 3 miles from his place of employment. He was taking a short cut home through a railroad tunnel and was three-fourths of a mile from the site of his job when he was struck by a train. The decision of an Appeal Board awarding compensation was reversed. The evidence showed that Williams had used the tunnel for about nine years in going to and from work and that “practically all of his fellow workmen did likewise without objection or warning from either the coal company [employer] or the railway company.” At 117. It is apparent from the decision of the Supreme Court of Appeals of West Virginia that, under the law applicable in that State, the provisions of the contract of employment are of over-riding importance. Thus, the Court in Williams distinguishes a case where, on similar facts, compensation was allowed, stating at 117:

“The written contract of employment required him [the successful claimant] to live in a company house, which was expressly agreed therein to be a part of the employer’s ‘plant and equipment’ and the occupation of which by the employee was made 'incidental’ to his employment.”

With respect to Mr. Williams, it was observed:

“In the present case . .. the claimant did not live in a company house and, of course, did not have any such contract;. .. . ”

In Dent v. Ford Motor Co., 265 N.W. 518 (Mich. 1936), upon which appellants also rely, the court reversed an award of compensation to an employee who slipped on the tracks in the street near his employer’s gate. The stated reason for reversal was that “the accident happened on a public street [and] . . . [defendant was not master, in any sense, of plaintiffs movements upon [that] street.” At 519. Giles was nowhere mentioned. The viability of Dent in Michigan is at best open to question. See, Stark v. L. E. Myers Co., 228 N.W.2d 411, 413 (Mich. App. 1975).

We are satisfied that Giles provides sound guidance in the instant appeal and that cases such as Dent, Draper and others cited by appellants which were decided prior to Giles are of little import here.

We are not unaware of the statement in Larson, § 15.13, that:

“if a reasonably safe and convenient route is available, and if the employee chooses a substantially more dangerous route, the exception [to the going and coming rule] will usually not be applied [thus denying compensation]. A typical example is walking along a railroad right-of-way instead ofaroad.” (Emphasis added.) (At 4-18,19).

He there cites Collier v. B. F. Goodrich, 104 N.E.2d 600 (Ohio App. 1950) where, on facts similar to those before us now, compensation was denied. Oddly, the court declined to follow Giles for the stated reason that:

“the Supreme Court of Ohio . . . has not permitted a right of recovery under facts similar to those which confront this court in the instant case.” At 601, 602.

(We are unable to account for the absence of any reference to Giles in Larson’s above citation to Collier, particularly in view of the somewhat extended treatment he affords it earlier in § 15.13 at 4-7 through 11).

It is our conclusion, under the rationale of Giles and its progeny of state cases, that workmen’s compensation may properly be awarded as arising out of and in the course of employment where, as here, the injuries were sustained between two separate portions of the employer’s premises on a means of egress more convenient but less safe than an available public street and where the evidence shows that the use of such egress was common, continued over a substantial period of time, and was neither forbidden nor warned against by the employer prior to the occurrence.

Judgment affirmed; costs to be paid by appellants.

      . Employees who suffer injuries while going to and returning from their places of work are generally excluded from the benefits of the Workmen’s Compensation Act. Stoskin v. Board of Education, 11 Md. App. 355, 274 A. 2d 397 (1971), citing Salomon v. Springfield Hospital, 250 Md. 150, 242 A. 2d 126 (1967).

      . The general meaning of “premises” is discussed in Larson, supra, § 15.41.

      . Larson thereafter states, § 15.41 at 4-47, that, “Onee a parking lot has achieved . . . the status of a portion of the employer’s premises, compensation coverage attaches to any injury that would be compensable on the main premises."

      . We note that the decedent was not traveling between portions of the employer’s premises, as here, but was enroute to his home.

      . As noted, supra, the Penn Central had posted “no trespassing” signs at one or more points along its right-of-way but they would not serve to protect appellant-employer from liability for compensation, as explained by Justice Sutherland in Parra more, supra.


author: Powers, J.,

text:
    R. E. BROWN et al. v. MONTGOMERY COUNTY, MARYLAND et al.
    [No. 339,
    September Term, 1975.]

      Decided January 29, 1976.

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

      Dennis Ettlin, with whom were Rex L. Sturm and Brown & Sturm on the brief, for appellants.

      H. Christopher Malone, Assistant County Attorney, with whom were Richard S. McKemon, County Attorney for Montgomery County, and Robert G. Tobin, Deputy County Attorney on the brief, for appellees.
   Powers, J.,

delivered the opinion of the Court.

Owners of real estate in Montgomery County raise in this appeal the narrow question of whether taxes based upon an assessed valuation made final by the Supervisor of Assessments may be collected while an appeal from that assessment is pending.

The issue was raised in a petition filed 18 September 1974 in the Circuit Court for Montgomery County by the property owners, styled as R. E. Brown individually and R. E. Brown and R. P. Brown, trustees under the will of Hatton D. Brown, against Montgomery County and its Director of Finance, seeking injunctive and declaratory relief. Numerous exhibits were attached to the petition. The County responded in a pleading which the parties agreed put the case in an appropriate posture to be decided as a matter of law. All of the facts were supplied in the pleadings and their attachments or were otherwise agreed to, and there was no dispute of any fact material to the issue.

The significant facts are that the taxpayers received timely notice, late in 1972, of tentative assessments for the 1973 levy year of $12,380 and $1,980 on two contiguous parcels of unimproved timber land they owned. They filed a timely protest. After a hearing before the Supervisor of Assessments in July 1973 on the protest, the Supervisor of Assessments entered the tentative assessments as the final assessments for the 1973 levy year. Taxpayers timely appealed to the Property Tax Assessment Appeal Board.

When a tax bill for the levy year 1973 was rendered to the taxpayers based upon the increased assessment theretofore made final by the Supervisor of Assessments, and upon which an appeal was pending, the taxpayers failed to pay the bill. Because taxes for the levy year 1973 were delinquent, the property was sold at a tax sale on 10 June 1974.

By its order dated 1 July 1974, the Appeal Board reduced the assessments for the levy year 1973 to $830 and $220, respectively, on the two parcels of land involved.

After the assessments on the property were reduced by the Property Tax Assessment Appeal Board, the county sent revised tax bills for the year 1973 to the taxpayers for the taxes calculated on the revised assessments and for interest and for tax sale redemption costs. The interest and costs on both parcels amounted in the aggregate to $51.04. The taxpayers refused to pay, and filed their petition in the Circuit Court for injunctive relief.

After a hearing on 20 December 1974 the Circuit Court, Mitchell, J., filed an order on 13 February 1975 dismissing the petition. This appeal was taken from that order.

Appellants raise these questions in their brief:

1. Whether a change in assessment becomes final after the Supervisor of Assessments hears and decides an appeal of a proposed assessment or after a decision of the Property Tax Assessment Appeal Board?

2. Whether the levy and tax sale conducted under a tentative assessment can result in the legal exaction of interest and penalties before a tax bill has been rendered based upon the final assessment as rendered by the Property Tax Assessment Appeal Board?

Their brief concludes with the statement that “a taxpayer should be required to pay taxes based upon a final assessment only after exhaustion of his appeal rights”.

The questions and the statement voice an understandable taxpayer grievance, but if the law were as appellants would have it, the capability of the taxing authority to perform its public functions could be brought to a standstill by mass appeals. The potential harm of such a rule is intolerable to government.

The laws controlling the questions raised here are clear, and the case requires only that we apply them, for no interpretation is needed. Code, Art. 81, § 29A fixes the date of finality as January 1, (a); thé fiscal year as the period starting July 1, (b); and the taxable year as the period starting July 1, (c).

Whenever any existing valuation of property for tax purposes shall be increased “it shall be the duty of the appropriate authority to notify the person against whom it is proposed to * * * increase * * * such valuation * * * by a written or printed notice, appointing a day for such person to make answer thereto or present such proof as he may desire in the premises.” § 29 (a). The notice must be served at least twenty days before the date of finality or the day of hearing. Id. (b). He may appear and present such proofs and arguments as he may desire. Id. (d).

The end of that phase of the assessment process is covered by § 29 (g), which says:

“Whenever an answer or protest is filed by any person as a result of the notice called for in subsection (a) of this section, or whenever a request for a change in an existing valuation is denied by a supervisor of assessments for the county or the department of assessments of Baltimore City, it shall be the duty of the appropriate authority to notify the person protesting or requesting a change in such valuation, by a written or printed notice, as to the final valuations so fixed by the supervisor of assessments for the county or the department of assessments of Baltimore City; and such final notice shall contain a statement advising said person of his rights of appeal to the next higher assessing authority within thirty (30) days from the date of said notice and the name and address of said next higher assessing authority.”

Appeals are governed by Art. 81, §§ 255-261, and include the provision in § 255 (b) that a taxpayer may demand a further hearing before the Property Tax Assessment Appeal Board as to the assessment of any property made by the initial assessing authority. This is the procedure followed by the taxpayers in this case. As required by § 255 (d), the order of the Property Tax Assessment Appeal Board, entered on 1 July 1974, notified the taxpayers of their right to appeal to the Maryland Tax Court. Being satisfied with the action of the Appeal Board, the taxpayers did not avail themselves of this further right.

There is nothing in the sections of the statute to which we have referred which postpones or suspends the obligation of a taxpayer to pay his taxes because of the pendency of a protest or of an appeal.

The operation of other sections of Article 81 leads inexorably to the collection of the taxes due, by voluntary payment or by sale.

This provision of Art. 81, § 46, seems mandatory:

“As soon after the date of finality as is practicable and before taxes become due and payable for the full levy year and/or the half levy year, as provided for in this article, the supervisor of assessments of each county and department of assessments of Baltimore City shall prepare and deliver to the collector a book or books showing the valuation and assessment of all taxable property subject to taxation in each county and Baltimore City, and the book or books shall be designated as the tax roll for use of the collectors of county and/or city and State taxes.”,

and leads into this provision of the law, found in § 60:

“Every collector receiving the tax rolls provided for in § 46 of this article, as well as certifications of assessments from the State Department of Assessments and Taxation, shall proceed to collect the taxes due thereon and payable to him with any penalty or interest imposed by law, * * * .”

The record in this case shows that such a bill for 1973 taxes, based upon the new assessment, was rendered to the taxpayers but was not paid. Under § 48, taxes are due on the first day of July of each taxable year, and are overdue and in arrears on the first day of October and shall bear interest thereafter, although under § (c) no interest or penalties are charged until at least thirty days after the bill for taxes has been mailed.

A system of tax sales is provided for in Art. 81, §§ 70-123C. Under § 72 (a), it is declared to be a mandatory duty of the collector of taxes to proceed to sell all property in his county upon which taxes are in arrears.

The collector of taxes had no choice but to proceed to sell the property of the taxpayers for delinquent taxes assessed and billed for the taxable year starting 1 July 1973. The facts before the court in this case showed that the property was sold. When the assessment was reduced by order of the Property Tax Assessment Appeal Board, the tax bill was revised to show the reduced assessments. The amount which the taxpayers were told they must pay in order to redeem their property from the tax sale included interest, penalties, and advertising and other costs of the tax sale, as required by Art. 81, § 93. The position of the taxpayers was and still is that they should not have been required to pay any taxes while the appeal from the assessment was pending. The appellants do not disagree with the manner in which the redemption law was applied, but they contend that it should not have been applied at all. The brief of the appellees informs us that the amount of money involved in the dispute was, at the time of the hearing in the lower court, $51.04.

Appellants express apprehension that if they had paid the taxes for which they were billed on the higher assessments, later reduced, they may not have been able to recover a refund of the overpayment. We think that any rights they may have had later to a refund, for having paid more taxes than were properly and legally chargeable to them, are adequately protected in Art. 81, § 214.

We hold that the obligation to pay taxes, legally assessed and legally billed, was not stayed or suspended pending an appeal from the assessment, and that non-payment by the taxpayers here inevitably resulted in a sale of their property by the collector of taxes and the requirement upon them to pay interest, penalties, and costs in order to redeem their property.

Order affirmed.

Appellants to pay costs.

      . The County’s response was entitled “Motion Raising Preliminary Objections”, but it sought no relief available under Maryland Rule 323. In the body of its pleading the County moved to dismiss the petition. No evidence had been taken, so Rule 535 was not applicable. The pleading was more in the nature of a speaking demurrer than anything else, but was treated by counsel and the court as a motion for summary judgment.