text:
    ELVINA BUGG et al. v. MARYLAND TRANSPORTATION AUTHORITY et al.
    [No. 1058,
    September Term, 1975.]

      Decided June 7, 1976.

      The cause was argued before Gilbert and Menchine, JJ., and Philip M. Fairbanks, Associate Judge of the Sixth Judicial Circuit, specially assigned.

      Charles P. Howard, Jr., with whom were Howard, Goslee & Kemp on the brief, for appellants.

      Judson P. Garrett, Jr., Assistant Attorney General and Daniel H. Bathon, Special Attorney, with whom were Francis B. Burch, Attorney General and J. Michael McWilliams, Assistant Attorney General and Counsel to the Department of Transportation, on the brief, for appellees.
   Gilbert, J.,

delivered the opinion of the Court.

Since 1960, Pink Bugg and Elvina Bugg have been involved in a controversy over 12.5 acres of land condemned by the erstwhile State Roads Commission and upon which part of the John F. Kennedy Expressway is now situated.

The Court of Appeals, in Bugg v. State Roads Comm’n, 250 Md. 459, 243 A. 2d 511 (1968), opined, “This case marks the end of a long trail which Mr. and Mrs. Bugg have travelled for some eight years.” 250 Md. at 460. The seeming tolling of the knell for the “Bugg-State Roads” controversy was, in the words of the late Samuel Langhorne Clemens (Mark Twain), “greatly exaggerated.”

Because of its informative value as background for the instant litigation, we deem it advisable to quote the recitation of facts set forth by the Court of Appeals in Bugg v. State Roads Comm’n, supra:

“Some time prior to June 1960, the Buggs purchased at a tax sale in Cecil County certain property located in the county which was assessed to the estate of William Cooper. While there is a suggestion that the property which was sold approximated two acres, when the Buggs instituted an equity proceeding in Cecil County to foreclose any right of redemption to the land which they had purchased, it seems that Mr. Bugg took a surveyor to the property which he thought he had purchased and indicated what he believed to be the boundaries. The surveyor prepared a description and the Buggs ultimately received a deed signed by the county treasurer which conveyed to them the tract covered by the description, containing 14.16 acres. Since the record in that case is not before us, there is no way to shed light on this anomaly.
In about 1962, the State Roads Commission (the Commission) having determined that 12.5 acres of the tract were required for the construction of the Northeastern Expressway, instituted proceedings for the acquisition of the required acreage in the Circuit Court for Cecil County and deposited the sum of $3,125, which the Commission believed to be the fair value of the property. Presumably as a result of the Commission’s title examination, Charles McKeever, Marie K. McKeever, Dorothy M. Shivery and R.E. Shivery were named as defendants, together with Mr. and Mrs. Bugg. Later, it was determined that Marie K. McKeever had died, leaving as her heirs at law her children, Charles McKeever and Dorothy M. Shivery, the latter being the wife of R.E. Shivery.
Subsequent to the filing of the Commission’s suit, Mr. McKeever and Mrs. Shivery brought action in ejectment against Mr. and Mrs. Bugg in Cecil County. The case was removed to and tried by the Circuit Court for Kent County and resulted in a verdict against the Buggs. In that case, in which Mr. and Mrs. Bugg were represented by counsel, Mr. McKeever and his sister were able to satisfy the court that the 14.16 acre tract had been owned by one Philip Smeltzer; that they had acquired the property from the heirs of Philip Smeltzer; and that Mrs. Shivery had paid the taxes on the property from 1957 to 1961. The court properly concluded that a tax sale of property on which taxes have been paid is invalid, . . . and may be the subject of collateral attack if the court lacks jurisdiction over the subject matter ....
As a consequence of Mr. McKeever’s and Mrs. Shivery’s victory in the ejectment suit, the Commission amended its petition in the condemnation suit, eliminating all defendants other than Mr. McKeever and Mrs. Shivery, with the result that they received the $3,125 deposited with the court clerk in connection with the taking.
There is an intimation, which the record before us neither confirms nor explains, that Mr. Bugg may have paid taxes on the 14.16 acre tract from the time of the tax sale until the Commission’s taking, and he testified below that he has been paying taxes on the 1.66 acre parcel which remained after 12.5 acres had been taken. Resolute in the pursuit of their claim, the Buggs, on 26 May 1967, brought a suit in Cecil County against the Commission in which they sought to eject the Commission from the 14.16 acres or alternatively, to require the Commission to answer in damages. The Commission moved to dismiss, on the ground that the verdict in the Cecil County ejectment suit was determinative of the Buggs’ rights. The Buggs countered with the contention that the Cecil County case only validated the McKeever-Shivery title as to the 12.5 acres taken in condemnation, leaving a 1.66 acre parcel still titled in the Buggs. It was from the order dismissing the Buggs’ suit that this appeal was taken.” 250 Md. at 460-61.

We glean from the record that the Buggs reopened the prior case and demonstrated, to the satisfaction of the trier of fact, that the Buggs were indeed the true owners, in 1960, of the land in controversy. The treasurer of Cecil County was apparently directed to execute a new deed to the Buggs. The deed, dated August 25, 1972, recites that it was made pursuant to a decree of the Circuit Court for Cecil County passed on June 15, 1972. The deed further states that the prior treasurer’s deed was erroneous in that it purported to convey two acres of land “. . . then belonging to the heirs of Philip Smeltzer, deceased, instead of the land then owned and assessed to William Cooper’s Estate . . . .” Furthermore, the new deed stated the correct quantity of land as “.. . 15.406 acres of land more or less . . . .”

Approximately two years later, on August 2, 1974, Gary Bugg, “Administrator of the Estate of Pink Bugg, Deceased,” brought suit against the Maryland Transportation Authority (MTA) and against, as the Attorney General describes it in his brief, the “. . . mythical John F. Kennedy Memorial Highway Commission.” The suit was commenced by the filing of a paper writing entitled “Bill in Equity for Damages.” The “Bill” alleged that Pink Bugg was unlawfully ejected from his rightful possession of approximately 13 acres of the land when the State Roads Commission, the predecessor of the MTA, took the land for use in connection with the John F. Kennedy Memorial Highway. Monetary damages in the amount of $10,000,000 were demanded. The MTA demurred to the “Bill.” Subsequently, Elvina Bugg was added as a party plaintiff. Judge J. Albert Roney, Jr., sustained the MTA’s demurrer to the “Bill” with leave to amend.

Elvina Bugg, individually, and Gary Bugg, as administrator of the estate of Pink Bugg, filed an “Amended Bill of Complaint” against “Maryland Transportation Authority, et al.” The “Amended Bill” narrated substantially the same facts as the original Bill except that it charged that there was no adequate remedy at law and if “. . . brought in a law court would be classified as an ejectment proceeding . . .” and, thus, was “. . . immediately precluded by the doctrines of sovereign immunity.” Viewing themselves as being without a remedy at law, the complainants stated that the MTA’s actions, in building and using a highway running over the complainant’s land, constituted “. . . a continuing nuisance . . .” which should be abated, and that the wrong committed by the State against them should be righted.

The complaint further averred that for “. . . at least twelve (12) years last past . . .” the MTA has been endeavoring to “. . . assume . . . sole control . . .” over the 12.5 acres. The complainants prayed, inter alia, that the court: (1) enjoin the MTA “. . . from preventing plaintiff’s . . . entry upon and over . . . [the] property . . (2) enjoin the MTA’s use of the property “. . . without due compensation to plaintiffs . . (3) enjoin MTA “. . . to remove each and every structure [upon the land] and ... to abate the nuisance . . (4) restrain the MTA “. . . from permitting the unlawful flow of vehicular traffic . . .” over the highway; (5) compel the MTA to regrade the land; (6) order payment from MTA of compensation for the nuisance; and (7) further order payment of “. . . restitution in the amount of $10,000,000.00 . . . .” The MTA promptly filed a “Motion Raising Preliminary Objection,” Md. Rule 323b. Judge Roney granted the MTA’s motion that the case be dismissed, and this appeal followed.

In this Court, the appellants raise three questions, namely:

“I. Whether the trial court was in error in granting dismissal based upon a Preliminary Motion ■ Raising Objection on the ground of governmental immunity, where there had been exercised statutory consent on the part of the State to be sued.
II. Whether the failure of the trial court to distinguish the instant case from the precedent relied on [in] its opinion deprived Appellants of the compensation to which they are justly entitled.
III. Whether the dismissal of the instant case by the trial court deprived the Appellants of their rightful standing to contest, pursuant to State legislation condemnation of their land.”

We view the three questions to be but one, namely, did the chancellor err in granting the MTA’s motion raising preliminary objection?

From Bugg v. State Roads Comm’n, supra, we learn that the MTA’s predecessor, in 1962, paid $3,125 for the 12.5 acres to the parties that were determined by the circuit court to be the rightful owners of the tract. The order of June 15, 1972, indicates, however, that the earlier ownership determination by the circuit court may have been wrong.

To support their contention that they are entitled to maintain the instant suit against the State, the appellants point to the Federal and State Constitutions which, by their very language, forbids the sovereign’s taking of private property without just compensation.

The Fifth Amendment to the Constitution of the United States proscribed the taking of “. . . private property . . . for public use, without just compensation.” The Fourteenth Amendment declares that no “. . . State deprive any person of life, liberty, or property, without due process of law.”

In the Maryland Declaration of Rights, Article 23, it is mandated, “That no man ought to be taken or imprisoned or disseized of his. freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.” Article III, § 40, of the Constitution of Maryland, provides that, “The General Assembly shall enact no Law authorizing private property, to be taken for public use, without just compensation, as agreed upon between the parties, or awarded by a Jury, being first paid or tendered to the party entitled to such compensation.”

The weakness in the foundation of the appellant’s constitutional argument, and one which causes that base to crumble under close scrutiny, is that there has been full compliance by the MTA with the 5th and 14th Amendments, as -well as with Article 23 of the Declaration of Rights, and Article III, § 40, of the Maryland Constitution.

When the State Roads Commission commenced condemnation proceedings in 1962, it joined, as parties defendant, Pink Bugg and Elvina Bugg, along with other persons thought by the Commission to be parties in title. The Commission deposited into the circuit court the sum of $3,125 which it believed was, at that time, a fair and reasonable price for the 12.5 acres of land that it sought to appropriate for public use. The Commission’s condemnation suit and simultaneous deposit of monies into the registry of the circuit court prompted the litigation between the Buggs and other purported owners concerning title to the land. That suit, in ejectment, resulted in a judgment against the Buggs. The Commission then had the right, in reliance upon that judgment, to delete the Buggs as defendants from the condemnation proceeding on the grounds that they were not proper parties. The monies paid for the land as a result of the condemnation flowed to the persons who had been adjudicated to be the rightful owners.

Later, efforts by the Buggs to oust the Commission from the 12.5 acres that had been successfully and lawfully condemned met with the same lack of success as the Buggs’ defense of the ejectment suit. Bugg v. State Roads Comm’n, supra.

Approximately ten years after the condemnation suit had been reduced to final judgment, the Buggs, in a proceeding in which neither the Commission nor its successor, the MTA, was a party, established to the satisfaction of the circuit •court that the Buggs had, in fact, actually acquired, in 1958, by a tax sale, the title to the 12.5 acres that had been condemned by the State in 1962. As we have already said, ■the county treasurer was then ordered to execute and deliver a corrective deed to the Buggs. On the strength of the corrected deed, the appellants instituted the present suit. Why the Buggs waited until 1972 to demonstrate the correct amount of acreage they had purchased at the 1958 tax sale and did not establish that fact in the 1962 ejectment case is not disclosed by the record.

Underlying appellants’ argument is the clear implication that they were denied the due process guaranteed them by the Federal and State Constitutions. We, however, do not share the view that the net results in the case subjudice-are below the Plimsoll mark. We believe due process, in the case now before us, was satiated when a jury of the Buggs’ peers determined, on the basis of the evidence presented to it, that the Buggs were not the rightful owners of the 12.5 acres and, thus, rendered a verdict against the Buggs. That the Buggs, for whatever reason, did not then establish, as they later did, that the 1958 deed was incorrect does not deny them due process; they were merely denied the result they desired. Had the evidence adduced at the 1962 ejectment case been the same as that produced in the 1972 case, the verdict, in the ejectment case, may have been different, but we need not speculate on that.

Due process of law does not mean that the litigant need be satisfied with the result. The “Due Process” provision of the Constitution is satisfied when, as here, the sovereign has taken all necessary steps, in an orderly fashion, to acquire the private property sought by it and has paid just compensation to parties then adjudicated to be the legal owners. “Due Process” does not require the sovereign to act as a continuing guarantor of the correctness of the adjudication, nor to pay compensation to a party who is later proven to be the true owner. A condemnation proceeding is a proceeding in rem and is binding upon all persons who are interested in the res even though they may not be, technically, parties to the suit. Record Bldg. & Loan Ass’n v. Safe Deposit & Trust Co., 166 Md. 348, 352, 171 A. 43, 45 (1934); Gardiner v. Mayor & City Council, 96 Md. 361, 381, 54 A. 85, 87 (1903).

The law is that when a condemnor voluntarily pays to the wrong person, he does so at his peril, but when the compensation is paid pursuant to an award of court, the condemnor is not liable to an adverse claimant even though the court award may be erroneous. See City of St. Paul v. Certain Lands, 48 F. 2d 805 (8th Cir. 1931); Cuyahoga County v. United States, 294 F. 2d 775 (Ct. Cl. 1961); United States v. Certain Parcels of Land, 40 F. Supp. 436 (D. Md. 1941); In re Sea Beach Ry., 148 N.Y.S. 1080 (1907), aff’d, 196 N. Y. 533, 89 N. E. 1112 (1909); Nolan v. City of New York, 179 Misc. 1011, 39 N.Y.S.2d 360 (1942); 29A C.J.S. Eminent Domain § 205, at 919 (1965).

Payment by the condemnor to the court of a sum of money, equivalent to the value placed upon the land sought to be condemned, operates so as to protect the condemnor from claims by adverse claimants who assert title. Record Bldg. & Loan Ass’n v. Safe Deposit & Trust Co., 166 Md. at 353; 29A C.J.S. Eminent Domain § 205, at 919 (1965). Payment directly to the court-determined holder of legal title, ipso facto, makes the State a bona fide purchaser without notice of adverse claims. See Brydon v. Campbell, 40 Md. 331 (1874). Even though the Buggs’ 1972 corrected deed relates back to the time of the original tax deed’s execution, it cannot divest a bona fide purchaser from possession and title of the land. Hoffman v. Chapman, 182 Md. 208, 211, 34 A. 2d 438, 440 (1943); 76 C.J.S. Reformation of Instruments § 93a (1952).

We hold that the Commission had an absolute right to rely upon the public records which, after the Buggs-McKeever suit in 1962, clearly showed that the Buggs were not a party in title. Events occurring ten years later and demonstrating the the public records relied upon by the Commission were incorrect do not retroactively divest the State of the title that it obtained through full compliance with the condemnation law. City of St. Paul v. Certain Lands, supra; Cuyahoga County v. United States, supra; United States v. Certain Parcels of Land, supra; In re Sea Beach Ry., supra; Nolan v. City of New York, supra; 29A C.J.S. Eminent Domain § 205, at 919 (1965).

We now turn to a discussion of the motion raising preliminary objection on the ground of sovereign immunity. Md. Rule 323b provided, at that time, in pertinent part:

“The defense of total or partial charitable or governmental immunity shall be raised by motion pursuant to this Rule. Such motion shall state specifically the grounds for immunity.”

The Maryland Transportation Authority was created by Laws 1970, Ch. 526. The legislative enactment is codified as Md. Ann. Code art. 41, § 208C, and it provides in subsection (b):

“On and after July 1, 1971, all power, authority, obligations, functions, duties and discretion (i) heretofore granted to the State Roads Commission of Maryland relating to the financing, operation, maintenance and repair of . . . the John F. Kennedy Memorial Highway, and any other toll revenue project authorized and provided for under Article 89B of the Annotated Code of Maryland, . . . are hereby transferred, granted to and vested exclusively in the Maryland Transportation Authority, acting on behalf of the Department of Transportation.”

It is beyond question that the Maryland Transportation Authority is an agency of the State and as such enjoys the same sovereign immunity as does the State for the reason that an agency of the State is but the alter ego of the State itself. See Md. Rule 323 a9. Appellants acknowledge that the Sovereign may not be sued without its consent but suggest that the State, in this case, waived the sovereign immunity objection by failing to raise it when the State defended the Buggs’ 1967 ejectment action involving the same land. Significantly, the appellant cites no authority for the novel assertion that a 1967 defense based, seemingly, upon res judicata, arising from the 1962 litigation, cited as Bugg v. State Roads Comm’n, supra, could ad infinitum bar any other defense in any other suit between the same parties, and we know of no such rule of law. In fact, the contrary rule seems to be the prevailing one. The Court of Appeals in Dunne v. State, 162 Md. 274, 288-89, 159 A. 751, 757 (1932), cert. denied, 287 U. S. 564 (1932), said flatly, “Courts should not hold that immunity from suit, one of the highest attributes of sovereignty, has been waived, except in cases of positive consent given, or by necessary and compelling implication.” See also Calvert Associates Ltd. Partnership v. Dept. of Employment and Social Services, 277 Md. 372, 357 A. 2d 839 (1976). There has been, in the case now before us, no “positive consent given” nor are we able to infer from the facts any “necessary and compelling implication” which conceivably call for a refusal to apply the doctrine in this case.

Albeit, that the MTA might have been able to interpose the theory of governmental immunity in the 1967 litigation but did not elect to do so, does not preclude it from raising that defense at the appropriate time in a proper case, such as that now before us. Cases holding that the State is immune from suit are legion. See, e.g., Calvert Associates Ltd. Partnership v. Dept. of Employment and Social Services, supra; Charles E. Brohawn & Bros. v. Board of Trustees, 269 Md. 164, 304 A. 2d 819 (1973); Spriggs v. Levitt & Sons, 267 Md. 679, 298 A. 2d 442 (1973); Jekofsky v. State Roads Comm’n, 264 Md. 471, 287 A. 2d 40 (1972); Godwin v. County Comm’rs, 256 Md. 326, 260 A. 2d 295 (1970); Univ. of Md. v. Maas, 173 Md. 554, 197 A. 123 (1938); Mayor & City Council v. State, 173 Md. 267, 195 A. 571 (1937); Dunne v. State, supra; State v. Wingert, 132 Md. 605, 104 A. 117 (1918); State v. Rich, 126 Md. 643, 95 A. 956 (1915).

The MTA’s motion raising preliminary objection was properly granted.

Order affirmed.

Costs to be paid by appellants.

      . Embodied in a cable from London, England, in 1897 to the Associated Press, the full text read: “The reports of my death are greatly exaggerated.”

      . The June 15, 1972 order is a part of the record, as is the deed executed in conformity therewith.

      . Mr. Pink Bugg died in 1973. We observe that the designation of administrators or executors is passe. See then Md. Ann. Code art. 93, § 1-101 (n), and then Subtitle VI of art. 93. The proper designation is “personal representative.” Md. Ann. Code, Estates and Trusts Art. §§ 1-101 (o), 6-101 et seq.

        . In answer to a request for admission of fact, Md. Rule 421, Gary Bugg denied that Elvina Bugg was the lawful wife of Pink Bugg. The deeds to Pink Bugg and Elvina Bugg, however, refer to them as husband and wife. The property at issue was conveyed to the duo as “tenants by the entireties.” Á tenancy by the entirety can only exist between husband and wife. Mitchell v. Frederick, 166 Md. 42, 170 A. 733 (1934); H. Tiffany, A Treastise on the Modem Law of Real Property and Other Interest in Land § 290 (abr. ed. 1940). A deed to unmarried persons as “tenants by the entirety” is a deed as tenants in common. Perrin v. Harrington, 146 App. Div. 292, 130 N.Y.S. 944 (1911).

      . See note 3 supra.

      . Paragraph number 1 of the Amended Bill of Complaint expressly stated that “John F. Kennedy Memorial Highway Administration” was . . sued in its own capacity as such.” That defendant, if it exists at all, has not been served and, consequently, is not a party litigant.

      . Condemnation proceedings are procedurally governed by Sub-title U of the Maryland Rules of Procedure. Provisions for notification are set forth in Rules U4 and U7. Payment is controlled by Rule U23.

      . To us it seems that the battle the Buggs are waging is directed toward the wrong foe. Their claim, if not now barred by limitations, should be aimed at the persons who received the $3,125.

      . Revisions, effective April 1, 1976, were made to Md. Rule 323. Rule 323a now enumerates “governmental immunity” as one of the grounds for a motion raising preliminary objection. Rule 323b now reads, in pertinent part:
      “Motions raising defenses of want of necessary parties, governmental immunity or lack of jurisdiction over the subject matter may be filed at any time.”

      . No contention is here made that the motion raising preliminary objection did not fully comply with the rule, nor would such an argument be valid in this case.

      . Laws of 1976, Ch. 450, pro/ides that the defense of sovereign immunity to suits against the State, based on written contracts, will not apply unless otherwise provided by law. The act is effective July 1, 1976, and is only applicable to contracts entered into or executed on or after that date.

      . But see note 10 supra.


source: Caselaw Access Project

author: Menchine, J.,

license: Public Domain

text:
    LEONA FERRELL KROMM v. CARMELA G. KROMM
    [No. 1118,
    September Term, 1975.]

      Decided June 7, 1976.

    The cause was argued before Gilbert and Menchine, JJ., and Philip M. Fairbanks, Associate Judge of the Sixth Judicial Circuit, specially assigned.

      Johnson Bowie and Sara Ann Verplanck for appellant.

      James G. Beach, Jr., with whom was Wade P. Thomas, Jr., on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

Carmela G. Kromm (appellee) filed an action at law in the Circuit Court for Baltimore County against Leona Ferrell Kromm (appellant) on November 9, 1973. Appellee at that time was the former wife of Franklin Barnett Kromm, having divorced him in July, 1972. Appellant was his present wife, having married him in June, 1973.

The declaration alleged that Leona Ferrell Kromm “had sexual relations with, debauched and carnally knew the plaintiffs former husband Franklin Barnett Kromm, Sr. thereby causing irreparable damage to her marriage which culminated in divorce.” Upon demand, appellee particularized her declaration by alleging that the sexual relations had occurred on June 19, June 20, June 29 and June 30, in 1971.

At trial a jury rendered a verdict in favor of the plaintiff appellee for $15,000.00. From the judgment thereafter extended the defendant appellant has appealed upon the following grounds:

1. That her demurrer to the declaration as particularized should have been sustained;
2. That the trial judge erroneously admitted evidence as to damages.

The Demurrer

Appellant argues that only the husband of a marriage may maintain an action for criminal conversation.

The precise question has not been decided in Maryland. Early on, however, the Court of Appeals, in Wolf v. Frank, 92 Md. 138, 48 A. 132 (1900), sustained the right of a wife to maintain an action for alienation of affection, saying at 143 [134]:

“Under our statute (section 5 of Art. 45 of the Code, as amended by Act of 1898, chap. 457), married women have the power ‘to sue for the recovery, security or protection of their property, and/or torts committed against them, as fully as if they were unmarried.’ As it is applicable to this case, there would seem to be no room to doubt that the appellee can, in her own name, maintain this suit.”

It is true, of course, that the tort of alienation of affection has been abolished in -Maryland. It has been directly held, however, that the torts of alienation of affection and criminal conversation are two different torts, and that the latter tort was wholly unaffected by the statute that abolished the former. Di Blasio v. Kolodner, 233 Md. 512, 197 A. 2d 245 (1964). Because of the close relationship between the former tort of alienation of affection and the existing tort of criminal conversation, Di Blasio, supra, at 517 [248], we conclude that the decision in Wolf, supra, compels the holding that the tort of criminal conversation may be maintained by the wife of the marriage. Such, plainly, is the -weight of authority. 41 Am. Jur. 2d, Husband and Wife, § 476. Under the Married Women’s Act, the wife has been placed on the same footing as her husband with respect to her property and personal rights. Sezzin v. Stark, 187 Md. 241, 49 A. 2d 742(1946).

The demurrer was properly overruled.

Alleged Evidentiary Errors

The trial court, over objection, permitted introduction of evidence by the appellee that her former husband had withdrawn $2246.30 from a joint bank account on May 27, 1971. This withdrawal occurred prior to the time of the alleged criminal conversation. Thus, it cannot be said to have been the result of the tort complained of. Its admission into evidence at the instance of the plaintiff was error.

At argument, counsel for appellee suggested that if we concluded that the evidence was improperly admitted, the error is susceptible to correction by a deduction from the judgment. Such a course was followed by the Court of Appeals in Metropolitan, Auto Sales v. Koneski, 252 Md. 145, 154, 249 A. 2d 141, 146 (1969), and by this Court in Schweitzer v. Showell, 19 Md. App. 537, 313 A. 2d 97 (1974). In the subject case, however, we cannot say that the admission of the evidence did not. have- an inflationary effect, upon the amount of damages awarded.. In such circumstances the course suggested by counsel for the appellee is impermissible. Brooks v. Fairman, 253 Md. 471, 476, 252 A. 2d 865, 868 (1968).

It was also improper to admit, at the instance of the appellee, as ¿n element of damages, the evidence relating to investigative, legal and moving costs. The fees had been paid by appellee for services in connection with investigation and prosecution of a divorce action. The appellee had claimed as damages also the costs of moving from the matrimonial home.

In Empire Realty Co. v. Fleisher, 269 Md. 278, 305 A. 2d 144 (1973), it was said at 285-86 [148]:

“The general rule is that, other than usual and ordinary court costs, the expenses of litigation — including legal fees incurred by the successful party — are not recoverable in an action for damages, Freedman v. Seidler, 233 Md. 39, 47, 194 A. 2d 778 (1963); Harry’s Tavern, Inc. v. Pitarra, 224 Md. 56, 63, 166 A. 2d 908 (1961); McGaw v. Acker, Merrall & C. Co., 111 Md. 153, 160, 73 A. 731 (1909); 1 Sedgwick, Damages, § 229 (9th ed. 1912). No attorney fee is ever included in the taxed costs, excepting the appearance fee, unless there is a special statute authorizing it, Hamilton v. Trundle, 100 Md. 276, 59 A. 719 (1905). And, in the absence of special circumstances, as where the parties to a contract agree on the payment of attorney’s fees, Webster v. People’s Loan, Savings & Deposit Bank, 160 Md. 57, 152 A. 815 (1931), or a statutory requirement, counsel fees are not a proper element of damages, Freedman v. Seidler, supra; Rhodes Hardwood v. Blue Ridge, 225 Md. 158, 169 A. 2d 399 (1961); Harry’s Tavern Inc. v. Pitarra, supra; cf. Marney v. Stack, 261 Md. 78, 273 A. 2d 426 (1971).

It is true that the Court of Appeals had said in McGaw v. Acker Merrall & Condit Co., 111 Md. 153, 160, 73 A. 731, 734 (1909):

“The general rule is that costs and expenses of litigation, other than the usual and ordinary Court costs, are not recoverable in an action for damages, nor are such costs even recoverable in a subsequent action; but where the wrongful acts of the defendant has involved the plaintiff in litigation with others, or placed him in such relations with others as make it necessary to incur expense to protect his interest, such costs and expense should be treated as the legal consequences of the original wrongful act. If the plaintiffs evidence be true, it was about to lose possession of the premises by the wrongful act of the defendant, and it was obliged to employ professional aid and incur expense to retain possession of the premises to which, as between itself and the defendant, it was entitled, and the necessary expenses it incurred to regain the possession is an element of the injury. (Emphasis supplied.)

The allowance of such expenses manifestly was grounded on the fact that the wrong there complained of had imposed a necessary obligation upon the plaintiff to institute the collateral action in order to protect his interest in and to regain possession of property.

In the subject case, however, the monies claimed as damages had been expended in efforts to terminate the relationship between appellee and her former husband, not to protect it.

In Fowler v. Benton, 245 Md. 540, 226 A. 2d 556 (1967), cert. den., 389 U. S. 851, rehearing den., 389 U. S. 996, an action for damages for alleged fraudulent representation, the plaintiff had sought to recover as damages the costs of legal fees in litigation allegedly flowing from such representation. The Court of Appeals at 550 [563] said:

“In order that expenses of so-called ‘collateral litigation’ be allowed as damages to a plaintiff, ‘such expenses must be the natural and proximate consequence of the injury complained of and must have been incurred necessarily and in good faith and the amount thereof must be reasonable.’ 25 C.J.S. Damages § 50. In our view the litigation expenses for which appellants claim reimbursement do not meet this test.” (Emphasis supplied.)

The evidence was improperly admitted.

It appearing that the error below relates exclusively to the issue of damages, we shall affirm upon the issue of liability but remand for determination of damages.

Judgment affirmed as to liability, but reversed as to damages and case remanded to the Circuit Court for Baltimore County for a new trial on the question of damages.

Appellant and appellee each to pay one-half of the costs.

      . Maryland Code, Courts and Judicial Proceedings Article, § 5-301 a.

      . Maryland Code Article 45, § 5.


author: Gilbert, J.,

text:
    JAMES H. GARNER v. JON H. GARNER
    [No. 1254,
    September Term, 1975.]

      Decided June 7, 1976.

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

      James L. Sherbin for appellant.

      Thomas B. Dabney, Jr., for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

On January 13, 1975, Jon H. Garner (Jon) sued his brother, James H. Garner (James), in the Circuit Court for Garrett County in assumpsit. The suit alleged that Jon had loaned James the sum of $6,910, but, despite demand for repayment, James refused to repay the monies. The declaration, on its face, recited that all the sums loaned by Jon to James had been turned over to James no later than August, 1971.

James responded to Jon’s averments, by raising the applicable general plea, a special plea of limitations and a further special plea that the brothers “ . . . were engaged in a partnership . . . from June, 1971, until September, 1974, and that one partner may not sue another partner in a Court of Law.”

At a non-jury trial before Judge Stuart F. Hamill, Jon prevailed in his claim and judgment was entered against James in the amount of $6,910.

James has appealed, and he attacks the judgment asserting that the trial judge erred because (1) the evidence established th.e existence of a partnership between the two litigating brothers, and (2) alternatively, that if there were no partnership then the Statute of Limitations was a complete bar to recovery. For the reasons stated infra, we think James to be wrong on both issues, and we shall, therefore, affirm the judgment of the circuit court.

The record shows that prior to 1971, James had established himself as an electrical contractor in Garrett County. Sometime in the early part of 1971, James had conversations with his brother, Jon, a plumber, concerning the creation of a partnership. According to Jon, he was to contribute $8,000 to the venture in exchange for an 8% interest in the business. There was, however, a condition precedent that the brothers would work together for a while before finalizing the partnership, apparently in order to see how the two would get along. Jon, believing that he could demand and get the return of his money at any time before the actual creation of the partnership, advanced to James $1,506.47 on or about May 29, 1971, $4,000 on June 12, 1971, and $1,403.53 on August 4, 1971. In addition, Jon transferred ownership of a truck to James, thus completing the payment of $8,000.

The business was then operated as “Garner and Garner Electrical and Plumbing Contractors.” All trader’s licenses were in James’s name. A back-hoe was purchased by James, although Jon, his wife, and James’s wife were all required to endorse a security instrument so as to assure repayment to the bank that had advanced the purchase price for the back-hoe. No partnership tax return was ever filed, and during the time in question, Jon was carried on the books as an employee of James or as a subcontractor. An Internal Revenue Service Form W-2 for 1972 clearly showed that Jon was employed by James during that year and was paid $7,594.38 in wages.

Each Garner wrote an agreement of partnership in his own hand. Neither, however, signed the “agreement” he had written or that written by his brother. The agreements are undated, but there was testimony that they were written in late 1971 or early 1972. A formal partnership agreement was drafted and it was signed by Jon in 1973. James did not sign the agreement.

James testified that he considered his brother and himself partners. He explained that for tax reasons no partnership return was filed, and his brother was carried as an employee or, sometimes, as a subcontractor. James pointed to the firm name and its listing in the telephone book as evidence of the partnership’s existence.

Judge Hamill found the existence of a condition precedent to the creation of the partnership, and that there had been no fulfillment of the condition. Consequently, he ruled that a partnership never existed. The judge further found that the monies were advanced by Jon to James subject to the condition, and they must be considered as a loan. The judge said that the loan was “. . . predicated on the future formation of a partnership which was not consummated because of the conduct of James.” Implicitly, the judge held that limitations did not begin to run against Jon until James’s declination to enter into a partnership became manifest.

James asserts that [t]he business was advertised as Garner and Garner in the phone directory . . . ”, on letterheads, and it appeared on insurance policies. This, he contends, is evidence that “[t]he parties conducted themselves as if they were a partnership and that was their intention.”

James’s argument would have validity if we were here dealing with a third party’s claim against an ostensible partnership rather than a suit between the two brothers, one seeking to show a partnership and the other denying its existence. In Myers v. Aragona, 21 Md. App. 45, 318 A. 2d 263 (1974), we discussed the use of a firm name on letterheads as suggesting to a third party that a partnership existed. We determined that such evidence was sufficient to create a partnership by estoppel. 21 Md. App. at 55. See also McBriety v. Phillips, 180 Md. 569, 26 A. 2d 400 (1942); Blaustein v. Oldfield, 135 Md. 162, 108 A. 485 (1919); Md. Ann. Code, Corporations and Associations Art. § 9-308.

The case sub judice, however, is not between third persons and a purported partnership, but rather between two parties advancing opposite views as to whether a partnership between them existed. As between the parties, a partnership is a matter of intention proven by their expressed agreement or inferred from either person’s actions or conduct. M. Lit, Inc. v. Berger, 225 Md. 241, 170 A. 2d 303 (1961); Cohen v. Orlove, 190 Md. 237, 57 A. 2d 810 (1948); Morgart v. Smouse, 103 Md. 463, 63 A. 1070 (1906). The burden of proving the existence of a partnership rests upon the party alleging it. M. Lit, Inc. v. Berger, supra; Miller v. Salabes, 225 Md. 53, 169 A. 2d 671 (1961): Beard v. Beard, 185 Md. 178, 44 A. 2d 469 (1945); Collier v. Collier, 182 Md. 82, 32 A. 2d 469 (1943); McBriety v. Phillips, supra.

At the time the Garner brothers commenced doing business together, . whether as employee-employer, contractor-subcontractor, or partners, the partnership law of Maryland was codified in Md. Ann. Code art. 73A. Article 73A, § 6 (1), defined a partnership as:

“ . . . [A]n association of two or more persons to carry on as co-owners a business for profit.”!!

The Uniform Act established specified rules to be used in ascertaining the existence, vel non, of a partnership. Md. Ann. Code art. 73A, § 7, then provided:

“In determining whether a partnership exists, these rules shall apply:
(1) Except as provided by § 16 persons who are not partners as to each other are not partners as to third persons.!!
(2) Joint tenancy, tenancy in common, tenancy by the entireties, joint property, common property, or part ownership does not of itself establish a partnership, whether such co-owners do or do not share any profits made by the use of the property.
(3) The sharing of gross returns does not of itself establish a partnership, whether or not the persons sharing them have a joint or common right or interest in any property from which the returns are derived.
(4) The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business, but no such inference shall be drawn if such profits were received in payment:
(a) Asa debt by installments or otherwise,
(b) As wages of an employee or rent to a landlord,
(c) As an annuity to a widow or representative of a deceased partner,
(d) As interest on a loan, though the amount of payment vary with the profits of the business,
(e) As the consideration for the sale of the good will of a business or other property by installments or otherwise.”

The Court of Appeals has held that a written agreement is not necessary in order to create a partnership. Gosman v. Gosman, 271 Md. 514, 318 A. 2d 821 (1974), rev’g in part and affg in part 19 Md. App. 66, 309 A. 2d 34 (1973); Presutti v. Presutti, 270 Md. 193, 310 A. 2d 791 (1973), M. Lit, Inc. v. Berger, supra. A similar conclusion was reached by Judge Winter in In re Hare, 205 F. Supp. 881, 884-85 (D. Md. 1962). This principle applies whether we speak of a partnership inter sese or a partnership as to third parties which, as we have seen, arises by operation of law. Waring v. National Marine Bank, 74 Md. 278, 22 A. 140 (1891); Bull v. Schuberth, 2 Md. 38 (1852); Myers v. Aragona, supra.

A partnership inter sese cannot exist against the consent and intention of the parties, and their intention must be gleaned from proof in the case. Southern Can Co. v. Sayler, 152 Md. 303, 136 A. 624 (1927); Waring v. National Marine Bank, supra.

The Court in Southern Can Co. v. Sayler, supra, discussed in depth the various tests that have been applied by courts in order to determine the existence or non-existence of a partnership, noting that the test most often applied in Maryland in cases arising out of a dispute between parties alleged to be partners is the intention of the parties. The test of intention, the Court opined, “ . . . logically should be given great weight.” 152 Md. at 316.

After the conclusion of the testimony and argument of counsel in the case now before us, Judge Hamill stated:

“In this case, we have a certain written agreement of the parties, I don’t believe either one of them are signed, but it’s their individual writings and they both admit that this was their own writing .... This agreement is certainly in itself too vague and too inconclusive to form a partnership. While the operations of these two individuals has some attributes of a partnership, I’m of the opinion that it is just entirely too vague and inconclusive for the court to construe this to be a partnership. Now, there is no doubt in my mind that they intended to form a partnership, and they worked together towards that end, but I do not believe that the partnership was ever consummated, and I believe it was the conduct of the defendant that prevented the formation of that partnership. The paradox of this case is that the defendant relies upon the formation of a partnership between himself and his brother, Jon, as a defense to Jon’s claim, but yet it was he, James, who was most responsible for the prevention of the formation of that partnership. In fact, it was he who refused, or at least never signed, the formal Articles of Partnership that were prepared . . . although . . . they were signed by Jon in November of 1973. Now, a partnership, like any other contract, requires mutuality, a meeting of the minds and agreement, and it requires definite terms and specific intent among other things .... But the evidence in this case clearly indicates that James did not wish to consummate this partnership agreement.
• From the evidence and testimony that I’ve heard and seen in this case, I am of the opinion that James kept control of this business, and also took title to both real and personal property in his own individual name, as well as trader’s licenses and so forth.
. . . [T]he evidence is totally inconsistent with the formation of a partnership, primarily, as I’ve said, because of the conduct of the defendant. There was no partnership trader’s license, and there was no partnership income tax returns ever filed. There was no formal partnership agreement ever executed, although it was contemplated by the parties and executed by Jon, it was not executed by James, who apparently refused, because at this time, according to the testimony, he decided he didn’t want to consummate this partnership with his brother, Jon. He had some opinion about his [Jon’s] drinking habits or something to that effect, although, . . . that testimony was very inconclusive as to . . . [Jon’s] drinking habits. There is no land, buildings, equipment, tools or personal property of any sort ever purchased in the partnership name. No bank accounts in the partnership name. And in 1972, . . . Jon was considered an employee and received a W-2 form showing his wages that he received as an employee.”

Based upon the evidence presented to him, Judge Hamill was unable to find the existence of a partnership notwithstanding that at one time there was an intent to form a partnership. The judge observed that James apparently had a change of mind and departed from the scheme. A reading of the above quoted portion of Judge HamilTs oral opinion manifests that the judge applied the applicable law as to a partnership inter sese and concluded that no partnership, in fact, existed. We are unable to state that his judgment on the evidence was clearly erroneous. Md. Rule 1086. Patently, James did not meet his burden of proving the existence of a partnership. M. Lit, Inc. v. Berger, supra.

With respect to the plea of limitations that James entered in defense to Jon’s claim, the trial judge brushed it aside because he considered the $6,910 which had been advanced by Jon to James, as “ ... a loan predicated on the future formation of a partnership which was not consummated because of the conduct of James.”

Courts and Judicial Proceedings Art. § 5-101 provides:

“A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.”

I H.G. Wood, A Treatise on the Limitations of Actions § 119, at 629-30 (1916), speaking of a right of action accruing upon the happening of a future contingency, states:

“ . . . Whenever the contract of the defendant is not absolute in the first instance, because of something to be done by the plaintiff or some third person as a condition precedent, the cause of action does not arise until the condition has been accomplished or the precedent act performed.” (Footnote omitted).

See Washington, Baltimore and Annapolis Elec. R.R. v. Moss, 130 Md. 198, 204-05, 100 A. 86, 89 (1917); Ponce v. McElvy, 47 Cal. 154 (1873). See also Whipple v. Blackington, 97 Mass. 476 (1867).

While the above quoted text is addressed to acts to be performed by a plaintiff and third person, it applies with equal effect to situations where a defendant was to do something as a condition precedent. A defendant, in a case such as that now before us, cannot fail to perform the condition precedent and successfully interpose the defense of limitations because the Statute of Limitations would not commence to run until the condition precedent had been satisfied. Since Jon filed suit on January 13, 1975, his claim would be barred only if the cause of action accrued prior to January 14, 1972. An examination of the evidence discloses that the handwritten agreements were drafted in late 1971 or early 1972. Jon worked for his brother in some capacity throughout 1972, and Jon signed the formal drafted agreement in 1973. Such evidence indicates, at the very least, that during 1972, the brothers worked amicably together and, implicitly, it had not yet become clear to Jon that no partnership would be formed. The judge could have inferred from the recited and other evidence in the case that the cause of action accrued subsequent to January 12, 1972, and, consequently, within the three-year Statute of Limitations.

We depart from the holding in this case to explain why we shall require the appellee to pay the costs of his own brief notwithstanding the customary practice of assessing costs against the nonprevailing party.

Appellee did not file his brief until the “eleventh hour,” i.e., literally minutes before scheduled oral argument. Appellant courteously interposed no objection to appellee’s tardiness, and the Court permitted the brief to be filed and counsel heard. Md. Rule 1030 e. We shall, however, as a sanction for the belated filing of the appellee’s brief, exercise the discretion vested in us by Md. Rule 1082 a and assess the costs of the appellee’s brief against the appellee.

Judgment affirmed.

Costs, except appellee’s brief to be paid by appellant.

Appellee to pay costs of his own brief.

      . The “agreement” penned by Jon provided:
      “I, Jon H. Garner, hereby enter into an agreement with my Brother, James H. Garner, concerning my investment in his company know [sic] as Garner Electrical Enterprises, [sic].
      The Future name shall be Garner & Garner Electrical & Plumbing Contractors.
      My investment into the company shall be one 1966 Chev. Pick up truck and 7,100 in Legal money, also some supplies & tools.
      For this investment I will have 8% interest in G & G and my brother shall have 92% interest in G & G.
      For this 92% interest he shall leave in the company one 1968 Chevy, two trucks, one 1961 international and one 1966 chevy panel, Accounts Rec, Accounts Payable, Notes Due Bank and money in Checking Accounts, Tools & supplies.
      My brother shall be held financial[ly] respondable [sic] for his interest in the Company.
      My brother has exclusive rights to purchase the Total stock held by me within one year after my Death, at 1,000 Dollars per per [sic] cent from my airs [sic] if all of the stock cannot be purchased within one year by my brother he may buy as much as possibly [sic] as long as the remaining amount of stock is purchased at the same time by a party of whom my brother agrees.
      I may purchase additional stock from my brother for 1,000 Dollars per share up to 49% of the stock in the company.
      The “agreement” prepared by James stated:
      I James Garner, hereby enter into an agreement with my brother Jon concerning my buisness [sic] holdings in Garner Electrical Enterprises.
      The future name shall be Garner & Garner Electrical & Plumbing Contractors.
      My holdings consist of one car 1968 Chevy, two trucks, 1961 international 1 1966 Chevy Panel, stock accounts rec, account payable, notes due banks, (SPOC) and money in checking accounts and all tools owned by me.
      W[h]ere as upon my death my brother has within a year the first right to purchace [sic] total stock hold [sic] by me or my airs [sic] at above agreed price. If all of the stock cannot be brought he may buy as much as able [sic] as long as remainder is purchased by others at the same time and with my brothers [sic] agreement.
      My brother agrees to invest $7,100 in real money and 1 1966 Chevy pickup, some supplies and tools.
      For the above investment he will have 8% interest in G & G.
      Future interest can be bought up to 49% total at 1000.00 per 1%. Cash paid to myself or my heirs.
      My brother is to be hold [sic] financially respon- [sic] for his percentage.

      . The testimony indicates that both brothers went to an attorney, described the business arrangement they were seeking and had the formal agreement drafted. James testified that the document accurately includes the terms both brothers had agreed upon.

      . Article 73A was titled as “The Uniform Partnership Act.” The Uniform Act was originally adopted in this State by Laws 1916, ch. 175, § 1. The updating and recodification of the Maryland Code has resulted in the Uniform Act’s now appearing in Md. Ann. Code, Corporations and Associations Art., Title 9.

      . The same definition now appears in Corporations and Associations Art. § 9-101 (f).

      . Former § 16 dealt with a partnership by estoppel. The same section, with minor changes none of which are substantive, now appears as Corporations and Associations Art. § 9-308.

      . Former jj 7 now appears as Corporations and Associations Art., § 9-201. According to the § 9-201 Revisor’s Note, the term “surviving spouse” was substituted for the word “widow” in paragraph (4) (iii) and the conjunction “or” was added to the paragraph (4) (iv) after the semicolon. The article “the” was substituted for the adjective “such” in paragraph (2) after “whether” and before “co-owners”; it was also substituted for “such” ir paragraph (4) after “if” and before “profits.” The Revisor declares that “[t]he only other changes are technical changes in punctuation.”


author: Mokton, J.,

text:
    ANDERSON McDOWELL v. STATE OF MARYLAND
    [No. 606,
    September Term, 1975.]

      Decided June 8, 1976.

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

      Paul G. Evans, Assigned Public Defender, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Smsher, State’s Attorney for Baltimore City, and Steven Tully, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Mokton, J.,

delivered the opinion of the Court.

The appellant was convicted by a jury in the Criminal Court of Baltimore (Cole, J., presiding) of murder in the first degree and unlawful use of a handgun under one indictment; robbery with a deadly weapon under a second indictment; and assault and battery under a third indictment. He was sentenced to life imprisonment on the murder conviction; twenty years (concurrent) on the armed robbery conviction; five years (concurrent) on the handgun conviction; and five years (consecutive) on the assault and battery conviction.

William Schmuck testified that about 3:30 p.m. on November 28, 1973, while helping his brother, LeRoy, who operated a shoe repair shop in Baltimore City, two men came into the shop. He described one of them as short with a ladies’ silk stocking over his head and face and the other as tall. Both had drawn guns. He stated that the tall one took all the money out of the cash register and placed it in a paper bag. He then turned to Schmuck’s brother and asked: “ ‘Where’s the rest of it?’ My brother pointed to the little cabinet underneath the cash register, and said, ‘The rest of it is down there.’ As soon as he got the last words out of his mouth, they both opened up at once, and shot him down. I was right in back of him three or four feet. The bullets missed me by six inches, and went right past me, right through the wall.” He estimated that four or five shots were fired. He stated that as the assailants were running out the door, the tall one dropped the bag containing the money. According to Schmuck, an eleven-year old boy, Philip Randolph, who lived a few doors away, witnessed the entire hold up and ran to notify a nearby police officer as the as sailants made their escape.

During cross-examination of Schmuck by appellant’s trial counsel, the following occurred:

“Q. And a moment ago you said that the defendant sitting there looks like the tall person. You can’t beyond a reasonable doubt say that this is the man that was in your store, can you, sir?
A. Not positive, but it looks a lot like him. Of course, I was upset, you know.”

A police officer testified that on December 2, 1973, he visited the home of Philip Randolph and in the presence of his mother handed the boy a group of five photographs. Randolph selected a photograph of the appellant and identified him as the tall assailant.

Philip Randolph took the stand and stated that he was in the shoe repair shop at the time of the murder and robbery which, in his words, were committed by one short individual and one tall individual. According to Randolph, he was shown a group of photographs several days after the crimes and picked out a picture of the appellant as the tall assailant. He could not make an in-court identification of the appellant and on cross-examination said he may have been mistaken in picking out the appellant’s picture as one of the assailants.

Kevin Faison, an accomplice who pleaded guilty to manslaughter, testified that he and the appellant, together with a boy named Pernell Gross, went to the repair shop in the afternoon of November 28, 1973; that he stayed outside to “look for the police”; that appellant and Gross entered the shop and shortly thereafter he heard a shot. He testified that immediately thereafter “the little boy came running out of the store” shouting “Mr. Roy just got shot.” When asked what happened to appellant and Gross, he answered: “I guess they ran.” He further testified that about two days later he encountered appellant who told him “that the police was looking for him, and he was going down Westside.” He further testified that appellant said that the police were looking for him “About a man * * * In the shoe shop.” Appellant also told him that “he went to the hospital * * * For he got shot in his arm.”

Alan Jackson testified that on November 30, 1973, he had a conversation with appellant, Pernell Gross and another boy during which the appellant “was telling me about the shoe shop got robbed” and how “him and Pernell had went in there * * * He told me that he was holding the money bag in his hand * * * And he dropped the money bag. * * * Because he said he got shot. * * * By Pernell.” According to Jackson, Pernell Gross told him during the same conversation and in the presence of appellant that he, Gross, had “said he had to shoot the man, and he said that he made the mistake and shot Cool [appellant] in the arm.”

Appellant took the stand, denied any participation in the crime, but admitted having been previously convicted of assault with a deadly weapon. He further testified that Faison and Gross had invited him to participate in the robbery of the shoe repair shop but that he refused. Immediately subsequent to the robbery he had seen Gross and Faison. Gross, after accusing appellant of planning to “snitch” on them, shot him in the arm. He was later treated at University Hospital.

John Wilson, a defense witness, testified that between 3:30 p.m. and 4 p.m. on November 28, 1973, he and the appellant were playing basketball in Lyndhurst Park when Pernell Gross approached appellant, shot him and then chased him from the park.

It is in this factual posture that appellant contends that there was a failure of proof to sustain the indictment for first degree murder with malice, premeditation and deliberation. The appellant argues that the indictment charges that he “feloniously, wilfully and of deliberately premeditated malice aforethought did kill and murder one Roy Schmuck, contrary to the form of the Act of Assembly, in such case made and provided, and against the peace, government and dignity of the State.” Appellant asserts that “The statute to which the indictment refers appears to be Article 27, § 407,” whereas, he was convicted of a violation of Maryland Code, Art. 27, § 410.

Maryland Code, Art. 27, § 407 provides:

“All murder which shall be perpetrated by means of poison, or lying in wait, or by any kind of wilful, deliberate and premeditated killing shall be murder in the first degree.”

Maryland Code, Art. 27, § 410 provides:

“All murder which shall be committed in the perpetration of, or attempt to perpetrate, any rape, sodomy, mayhem, robbery, burglary, kidnapping * * * shall be murder in the first degree.”

There are two short answers to appellant’s rather novel but completely unsubstantiated contention. First, nowhere in the indictment is either statute mentioned. Thus, it is pure speculation to say that the statute referred to in the indictment is § 407. Secondly, and more importantly, murder is a common law crime not a statutory crime. Sections 407 and 410 “do not create any new crime, but merely classify murder, as it was known at common law, into degrees. [Citations omitted.] At common law, a killing in the perpetration of a robbery was murder, regardless of intent. See Clark and Marshall, Crimes (4th ed.), sec. 245. As used in the statute, the ‘common law sense is left unimpaired; the measure of punishment only is sought to be graduated according to the circumstances under which it was committed.’ Davis v. State, supra [39 Md. 355], It is perfectly clear that a finding either that the killing was wilful, deliberate and premeditated, or that it was in perpetration of a robbery, would support a verdict of first degree murder.” Stansbury v. State, 218 Md. 255, 260 (1958).

Here, the evidence adduced would permit either finding. Certainly, the murder was committed in the perpetration of a robbery. In Mumford v. State, 19 Md. App. 640, 643 (1974), this Court stated: “ * * * the fact that the accused was committing a felony creates proof of malice and premeditation sufficient to sustain conviction for first degree murder for any killing consequent to the felony.” See White v. State, 23 Md. App. 151 (1974).

On the other hand, the senseless shooting of the victim four or five times after he had told his assailants where the rest of the money could be found creates a rational inference that the killing was wilful, deliberate and premeditated. In any event, the evidence conformed with the charge set forth in the indictment. We think that the contention is wholly without merit.

It is next contended that the trial judge committed reversible error in permitting the state to elicit from the witness, Alan Jackson, that during his conversation with the appellant and Pernell Gross shortly after the murder and robbery, Gross had said he was trying to shoot the victim and mistakenly shot the appellant in the arm. The trial court, in apparent reliance on the holding in Ewell v. State, 228 Md. 615 (1962), admitted the testimony over appellant’s objection. In Ewell, the Court of Appeals stated, at 618:

“It is generally held that if a statement is made by another person in the presence of a party to the action, be it civil or criminal, containing assertions of facts which if untrue the party would under all the circumstances naturally be expected to deny, his failure to speak is circumstantial evidence that he believes the statements to be true, and his conduct is thus receivable against him as an admission of such belief.”

Former Chief Judge Hall Hammond, who wrote for the Court in Ewell, went on to say, at 619:

“Because of the hearsay rule, failure to deny an incriminating statement is not admissible as direct evidence of the fact asserted, but it may be received as showing the reaction of the accused to the statement and from his reaction an inference of guilt may be drawn. The trial judge must determine, as a preliminary matter, whether the statement and the failure to rebut it occurred in an environment and in the presence of actors such that a reply might naturally have been expected. If he decides the testimony is admissible, then it is for the- jury, under proper instructions from the court (that such evidence is to be received with caution, that it is not substantive evidence of the fact asserted and does not of itself show guilt and that it is but a circumstance which permits the drawing of an inference of guilt) to determine: (a) whether the accused was aware of the making of the statements; (b) whether under the circumstances a reply was to be naturally expected; and (c) whether the failure of the accused to reply showed an awareness, a consciousness of guilt.”

Here, it was established that appellant was present when Gross made the statement to the witness, Jackson, and there was no denial interposed by appellant. While it is clear that the trial judge made his preliminary determination to admit the challenged testimony out of the presence of the jury, he did not comply with the admonitions laid down in Ewell that cautionary instructions be given to the jury concerning the nature of such testimony and the treatment it should be accorded. No exception to the omission was taken by appellant. In Ewell, where likewise no exception had been taken to the omitted instructions, the Court of Appeals refused to consider the omission. See Ewell, supra, at 621. We follow that same policy in this appeal. Maryland Rule 756 g.

In contesting the admission of Jackson’s testimony, the appellant advances the further argument that its admission constituted a denial of his right under the sixth amendment to the United States Constitution and his right under Article 21 of the Maryland Declaration of Rights “to be confronted with the witnesses against him.” Appellant recognizes that the decision of the United States Supreme Court in Dutton v. Evans, 400 U. S. 74 (1970), constitutes an impediment to his argument, but he endeavors to avoid its impact by asserting that Dutton v. Evans is distinguishable from the case at bar. In Dutton v. Evans, Evans had been convicted in a Georgia court of participating in the murder of three policemen. In the course of the trial, a witness for the state, named Shaw, was permitted to testify that Williams, an accomplice of Evans, had told him [Shaw] while he was in prison awaiting trial that if it had not been for Evans, he, the accomplice Williams, would not “be in this now.” Objection to the testimony was made on the ground that the introduction of this hearsay testimony was in violation of Evans’ right of confrontation. The objection was overruled and the issue before the Supreme Court was whether Evans’ murder conviction should be set aside because of the admission of this testimony.

In the course of holding that the admission of the testimony did not constitute reversible error, Mr. Justice Stewart, in speaking for the Court, stated at 80, 86:

“It is not argued, nor could it be, that the constitutional right to confrontation requires that no hearsay evidence can ever be introduced.”
* * *
“It seems apparent that the Sixth Amendment’s Confrontation Clause and the evidentiary hearsay rule stem from the same roots. * * * But this Court has never equated the two, * * * and we decline to do so now.”

He went on to point out that in Pointer v. Texas, 380 U. S. 400 (1965), the Court had recognized the admissibility against an accused of dying declarations and also testimony of a deceased witness who had testified at a prior trial. And, of course, there are others, e.g., business records, excited utterances, and testimony given at a prior trial where the witness is otherwise available for the current trial.

Mr. Justice Stewart continued, at 88:

“From the viewpoint of the Confrontation Clause, a witness under oath, subject to cross-examination, and whose demeanor can be observed by the trier of fact, is a reliable informant not only as to what he has seen but also as to what he has heard.”

He further stated, at 89, that:

“ * * * the circumstances under which Williams made the statement were such as to give reason to suppose that Williams did not misrepresent Evans’ involvement in the crime. These circumstances go beyond a showing that Williams had no apparent reason to lie to Shaw. His statement was spontaneous, and it was against his penal interest to make it. These are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant.”

The factual posture of Dutton v. Evans, supra, is substantially identical to that presented in the record before us. The appellant’s trial counsel had the opportunity to cross-examine Jackson, a witness under oath, and counsel did so vigorously. The jury had the opportunity to observe Jackson’s demeanor, to assess his reliability and to determine the truthfulness of his testimony concerning Gross’s statement that he had inadvertently shot the appellant in the course of the robbery. Moreover, the circumstances under which Gross made the statement were such as to give reason to believe that he did not misrepresent appellant’s involvement in the crimes. His statement to Jackson in the presence of the appellant was spontaneous and against his own penal interest. “These are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant.” Dutton v. Evans, supra, at 89.

Mr. Justice Harlan in his concurring opinion in Dutton v. Evans, supra, made this observation which we find to be persuasive, at 96-97:

“Regardless of the interpretation one puts on the words of the Confrontation Clause, the clause .is simply not well designed for taking into account the numerous factors that must be weighed in .passing on the appropriateness of rules of evidence. The failure of Mr. Justice Stewart’s opinion to explain the standard by which it tests Shaw’s statement, or how this standard can be squared with the seemingly absolute command of the clause, bears witness to the fact that the clause is being set a task for which it is not suited. The task is far more appropriately performed under the aegis of the Fifth and Fourteenth Amendments’ commands that federal and state trials, respectively, must be conducted in accordance with due process of law. It is by this standard that I would test federal and state rules of evidence.4 ”

.By way of the footnote, he elaborated further:

“4 Reliance on the Due Process Clauses would also have the virtue of subjecting rules of evidence to constitutional scrutiny in civil and criminal trials alike. It is exceedingly rare for the common law to make admissibility of evidence turn on whether the proceeding is civil or criminal in nature. See 1 Wigmore, supra [Wigmore, Evidence, 3rd ed. 1940], § 4, at 16-17. This feature of our jurisprudence is a further indication that the Confrontation Clause, which applies only to criminal prosecutions, was never intended as a constitutional standard for testing rules of evidence.”

By whatever route pursued, we think that in the factual circumstances here, the trial judge did not commit reversible error in admitting Jackson’s testimony that while he was conversing with Gross and appellant shortly after the murder and robbery, Gross said he mistakenly shot appellant while attempting to shoot the victim. There may be occasions where the facts would demonstrate a violation of an accused’s constitutional right to confrontation or due process of law, but on the record before us this is not such an occasion.

Appellant next complains that he was misled by the answers given by the state to interrogatories he propounded before trial. It appears that the state advised him: “The Defendant made no statements or confessions, oral or written, which are known to the State at the present time.” Appellant contends that he should have been advised in the state’s answer of the incriminating statements he made to Jackson and of his admission, by silence, of the truth of Gross’s statement to Jackson. The short answer to this contention is that we have consistently held that the state is not obliged to furnish a defendant with the substance of statements given to non-state agents since such statements do not come within the purview of Maryland Rule 728. See Funderburk v. State, 12 Md. App. 481 (1971); Smith v. State, 4 Md. App. 146 (1968); Barton v. State, 2 Md. App. 52 (1967). Obviously, Jackson was not an agent of the state.

It is next contended that the trial judge erroneously failed “to suppress in-court identification.” Appellant argues that the photographic display to young Philip Randolph was impermissibly suggestive. He asserts that appellant was the only individual in the five photographs shown to Randolph who was wearing “plaits.” Randolph was never asked whether appellant’s hair style had anything to do with the selection of appellant’s photograph and since Randolph had advised the police that one assailant was wearing a stocking over his face and the other had a stocking on his head, it seems highly unlikely that the plaited hair had any unfairly compelling influence upon his choice of appellant. In any event, we have carefully reviewed the record in its entirety and it is our independent determination that the photographic procedure employed by the police was not in derogation of any constitutional rights of the appellant. Dobson v. State, 24 Md. App. 644 (1975); King v. State, 18 Md. App. 266 (1973).

The appellant’s contention that the trial judge improperly instructed the jury with respect to the burden of proof in a murder trial has substantial validity for the instructions given by the trial judge, here; violated the teachings of Mullaney v. Wilbur, 421 U. S. 684 (1975) and Evans v. State, 28 Md. App. 640 (1975). The instruction that all homicides are presumed to be second degree murder and that the burden of proof was upon the appellant to reduce the offense to manslaughter was clearly wrong. The error, however, does not compel a reversal of appellant’s conviction since he was convicted of murder in the first degree. In Brown v. State, 29 Md. App. 1, 19 (1975), this Court held, in an opinion authored by Judge Gilbert, that the error

“ * * * is cured by the verdict of murder in the first degree because it is clear that the State has met its ultimate burden and proved that the crime was committed with wilful, deliberate and premeditated malice, the essential ingredients of first degree murder. By so proving to the satisfaction of the trier of fact, at a jury or a non-jury trial, the State has disproved second degree murder. Similarly, an erroneous instruction concerning an accused’s burden of lowering the offense from second degree murder to manslaughter is likewise cured because the State has negated to the satisfaction of the trier of fact, any mitigation. The net result, in such cases, of incorrect instruction where mitigation or ‘hot blood’ is not an issue fairly in the case, is that the instruction, at worst, is harmless beyond a reasonable doubt under Harrington v. California, 395 U. S. 250, 254, 89 S. Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U. S. 18, 87 S. Ct. 824, 17 L.Ed.2d 705 (1967), and, at best, a gratuity given for the benefit of the accused and to which he was not entitled.”

The appellant’s defense at the trial below was not justification, provocation, self-defense or other mitigating circumstance, but simply the defense of alibi — he was not present when the crime was committed. As Judge Gilbert poignantly stated in Brown, the incorrect instruction with respect to reducing the crime to manslaughter was a mere beneficial gratuity to which appellant was not entitled.

Appellant also asserts that the trial judge’s instructions to the jury concerning the treatment to be accorded the testimony of an accomplice “does not pass muster.” We disagree. His instructions in this regard were entirely adequate.

Finally, appellant complains that the prosecuting attorney made improper comments upon the evidence and drew erroneous conclusions therefrom which the trial judge compounded by his failure to give curative instructions to the jury. We have examined the closing arguments presented by the state in the light of the guidelines set out by the late Judge William J. O’Donnell in Wilhelm v. State, 272 Md. 404 (1974) and cannot find that the state’s arguments exceeded the perimeters of legitimate argument announced therein. Moreover, the trial judge admonished the jury that “what counsel say to you about the facts or the law in this case is not binding upon you. What they say in their opening and closing statements is not evidence in the case, but only their opinion of what the evidence and the law is.” We find no error.

Judgments affirmed.

      . Unexplainably, the state in its brief makes no attempt to meet the issue.