author: Morton, J.,

text:
    CHARLES BROOKS v. STATE OF MARYLAND
    [No. 539,
    September Term, 1974.]

      Decided March 14, 1975.

      This cause was argued before Morton, Lowe and Melvin, JJ.

      Russell D. Karpook, Assigned Public Defender, for appellant.

      Albert Galla,tin Warfield, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Alien, State’s Attorney for Baltimore City and Ralph Murdy, Assistant State’s Attorney for Baltimore City on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The basic question presented in this appeal is whether an individual who enters a store while it is open to the public for business, secretes himself therein and then is apprehended after the closing hour under circumstances which indicate an intent to steal, can be convicted of storehouse breaking, Code, Art. 27, § 32.

Charles Brooks, a/k/a Charles Brice, was found guilty of breaking and entering after a non-jury trial in the Criminal Court of Baltimore (Liss, J., presiding). Sentence was set at five years under the jurisdiction of the Division of Correction.

The testimony of the three State’s witnesses established that on the evening of July 28, 1973, the Two Guys department store located at 2401 Belair Road closed its doors to the public at the conclusion of its normal business day. In the course of the daily routine, the store was completely secured from the outside, merchandise for sale within the store was appropriately secured and no unauthorized personnel had permission to enter the premises.

At approximately 2:30 a.m. on the morning of July 29, 1973, both the city police and a private security firm, A.D.T., responded to an alarm at the store. An employee of the security organization stated that although the store building was “secured from the outside,” the continued sounding of alarms from inside indicated to him that someone was moving around within the building.

Officer William Childs of the Baltimore City Police Department had also arrived on the scene. He corroborated testimony that the building was, to all appearances from the exterior, secured. Along with other officers, he entered the Two Guys store and discovered appellant and two other men hiding “inside the lower shoe case inside the shoe department.” A search of the store revealed that encasements of jewelry had been opened and rifles, which had been chained to a gun rack, had been forcibly removed. The officers observed this merchandise near the place the appellant was apprehended.

Appellant testified on his own behalf. His recollection of the events started around 8 p.m. on July 28, 1973, with his imbibing “[a]bout a pint and a half” of “Grand Dad” and “Bacardi Rum.” Appellant then remembered proceeding toward his mother’s house when two friends, John and Robert, happened along and, apparently’ feeling the effects of overindulgence, “I asked them if I go with them would they see that I get home safely.”

The three hailed a taxi but instead of going home drove to the Two Guys department store. The store was still open, the threesome entered, appellant stating: “I went in the back and got something to eat. I was hungry and tired and I went in the shoe department and they told me to sit down, I was tired and I got in on the shelf and went to sleep.”

Sometime later, after the store was closed, his two companions returned to waken him but appellant dismissed them saying “man, don’t bother me I’m sleeping.” Appellant was subsequently roused from his slumber by loudspeakers barking “come out” and believing, correctly, that he was in trouble he returned to his homelike shelf in an attempt to hide.

On the basis of this record, Judge Liss found appellant guilty of storehouse breaking.

It is in this factual posture that appellant contends that “There was not sufficient evidence of the essential element of ‘breaking’ to convict Brooks [appellant] of storehousing breaking.”

Code, Art. 27 § 32 provides:

“Every person, his aiders, abettors and counsellors, who shall be convicted of the crime of breaking a storehouse, filling station, garage, trailer, cabin, diner, warehouse or other outhouse or into a boat in the day or night with an intent to commit murder or felony therein, or with the intent to steal, take or carry away the personal goods of another of the value of one hundred dollars ($100.00) or more therefrom, shall be guilty of a felony, and upon conviction sentenced to the penitentiary for not more than ten years.”

As used in the statute, breaking is given its common law meaning. This requires either an actual or constructive breaking of the storehouse by a criminal trespass. Reagan v. State, 2 Md. App. 262. The appellant implicitly argues that because he entered the store premises at a time when it was open to the public for business, he entered with the consent of the owners. Thus, he argues, his entrance into the store was not by “breaking,” either actually or constructively. At this point or stage in appellant’s conduct, his reasoning would appear to be unassailable. His course of conduct, however, did not stop at that point. Unlike other members of the public, he did not make his departure when the store closed but remained therein in spite of the fact that any reasonable person would understand that the owner’s invitation to be present in the store terminated at the time when the store was closed for business.

It has been consistently held that where one gains entrance by trick, fraud, artifice, deception or similar means, one may be said to have constructively broken. See, Clark and Marshall, A Treatise on the Law of Crimes, 7th ed., § 13.03, pp. 995-998; Hochheimer, Law of Crimes and Criminal Procedure, 1st ed., § 549, p. 320; Perkins on Criminal Law, Ch. 3, § 1A, pp. 194-196; 2 Wharton’s Criminal Law and Procedure (Anderson ed. 1957), §§ 414-415, pp. 38-40. Our previous decisions have recognized that this doctrine, when fairly applied, satisfies the breaking requirement of the statute. Jones v. State, 2 Md. App. 356, 360; Reagan v. State, supra.

Thus, whether or not we can term appellant’s original entrance into the store to be by trick, fraud, artifice, deception or otherwise, we think it can be fairly said that appellant’s failure to leave the premises when the store closed for business made his original entrance a constructive, illegal breaking and entering, ab initio.

There are jurisdictions which have held otherwise when confronted with a similar factual situation. See People v. Kelley, 253 App. Div. 430, 3 N.Y.S.2d 46 (1938); Malloy v. State, 58 Tex. Crim. 425, 126 S. W. 598 (1910); Smith v. State, 60 S. W. 668 (Tex. Cr. App. 1901); St. Louis v. State, 59 S. W. 889 (Tex. Cr. App. 1900). But see Thommen v. State, 505 S.W.2d 900 (Tex. Cr. App. 1974).

On the other hand, support for our holding is found in Levesque v. State, 63 Wisc. 2d 412, 217 N.W.2d 317 (1974) where the defendant entered a sandwich shop shortly before closing time, ordered a cup of coffee and secreted himself in the men’s room until the shop closed. He then proceeded to ransack it and while doing so was apprehended. He argued on the appeal from his conviction for burglary that the conviction should fall because he entered the shop with the consent of the owner. In dismissing this argument, the Supreme Court of Wisconsin said, at 319-320:

“It has been broadly stated that entry into a place while open to the general public is with consent * * *. Such entry by the general public to a building is impliedly conditioned by time, place and purpose. It is the extent and scope of the consent of the one in possession which determines the legality of the entry and presence of the public within the structure. Entry into a building means more than the passing through a door or opening; it includes the idea of presence within the building resulting from passing through the door or opening. The consent of the one in possession of a building, if he be a merchant, is impliedly conditioned by the purpose of doing business with the merchant in the area set aside for that purpose. The consent given to the public to enter is not for all things and all purposes. * * * Levesque had consent to enter the restaurant as a member of the public for the purpose of eating and drinking in the restaurant. When the restaurant closed for the night, that consent was terminated and Levesque was inside without consent; not only that, but he was in an area not open to the public. His entry ab initio was without consent.
“On the effect of the right to enter premises, 12 C.J.S. Burglary § 11, states: ‘Entering a place where one has a right to be, although with intent to commit a crime, is not burglary; but one having a general right to be in a building may be guilty of burglary where he entered at a time or place beyond his authority.’ To this, we would add ‘or remains at a time or place beyond his authority.’ ” [Emphasis supplied.)

We think the view expressed in Levesque is a sound and better reasoned view. It has been followed in other jurisdictions. See State v. Keys, 419 P. 2d 943 (Ore. 1966); State v. Pierce, 14 Utah 2d 177, 380 P. 2d 725 (1963). See also Annot. 93 A.L.R.2d 531.

Accordingly, we find no merit in the contention that there was not sufficient evidence of a “breaking” to sustain appellant’s conviction of the crime of “breaking and entering.” That there was an intention to steal after the breaking and entering is amply demonstrated by the taking of merchandise from the jewelry showcase and the forced removal of guns from the chained gun rack.

Appellant’s secondary contention, that denial of his motion for a new trial' was “clearly erroneous” is without merit. The basis of his motion for a new trial was that he “had desired to have the two juvenile co-defendants testify on his behalf, but they could not be located.” The trial was postponed twice, giving appellant, we think, every fair opportunity to locate the two other individuals involved in the breaking. Nor do we find that the purported statement of one of the other two men proffered by appellant’s counsel at the hearing on the motion added measurably to the merits of the defense. In any event, we cannot say that denial of the motion amounted to an abuse of the trial judge’s discretion. State v. Devers and Webster, 260 Md. 360; Jones v. State, 16 Md. App. 472.

Judgment affirmed.


source: Caselaw Access Project

author: Menchine, J.,

license: Public Domain

text:
    HARRY B. GIARDINA v. THE FARMS COMPANY

      [No. 553,
    September Term, 1974]

      Decided March 14, 1975.

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

      Hamilton P. Fox, with whom were Charles R. Dashiell, Jr. and Heame, Fox & Bailey on the brief, for appellant.

      Dale R. Cathell, with whom were Cathell & Ewell on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

In August, 1968 Harry B. Giardina (Giardina) began employment by The Farms Company (Farms) as its general superintendent. Farms was engaged in the construction of high-rise condominiums in Ocean City, Maryland. Giardina commenced employment during the construction of “Beachmark,” continued it during the construction of “High Point,” ended it on December 15, 1971 in the course of the construction of “High Point North.”

Giardina had been furnished living quarters as a part of his compensation — in the beginning Unit 3 of “Thirteen on the Beach” — from May, 1969 until the present in Unit 4 of the latter condominium. The subject litigation was initiated by Giardina by a bill for specific performance of his allegedly accepted option to purchase Unit 4 for $28,500.00, subject to an annual ground rent of $450.00, from Farms. A counter-action by Farms sought a decree directing Giardina to vacate those premises and an award of damages for his alleged continuing wrongful possession. The Circuit Court for Worcester County by its decree denied the relief prayed by Giardina; ordered him to vacate Unit No. 4, Thirteen on the Beach Condominium; and extended judgment against him for $8500.00 in favor of Farms. Giardina has appealed.

A written option to purchase was executed on September 15,1969 and reads as follows:

“Received from Harry Giardina, hereinafter referred to as purchaser $10.00 as consideration for an option to purchase the following described property from the Farms Company, hereinafter referred to as Seller.
Townhouse number 4 as shown on a plat entitled Thirteen on the Beach Condominium at 43rd Street, Tenth Election District, Ocean City, Worcester County, Maryland.
at and for the price of $28,500, to be paid in full at settlement, plus $450.00 annual ground rent.
“This option shall continue in effect during purchasers employment with The Farms Company. Purchaser shall notify seller in writing of his intention to exercise the option before termination of employment. In the event purchaser does not exercise the option, this agreement shall be declared null and void and of no further force or effect and the consideration paid shall be retained as liquidated damages by seller.
“In the event seller [sic] exercises the option, the consideration shall be applied to the purchase price and settlement shall be held on or before 60 days from such notice.”

It will be observed: (a) that the option provided that it “shall continue in effect during purchaser’s (Giardina’s) employment with the Farms Company” and (b) that “Purchaser shall notify seller in writing of his intention to exercise the option before termination of employment.” (Italics supplied) On these two phrases “hang all the Law and the Prophets.”

Employment. Status of Giardina

The relationship between Giardina and Farms seems to have been most cordial until December 15, 1971. Better understanding of the events of that day requires a brief statement of the chain of command of The Farms Company and the status of construction of High Point North at that point in time. John S. Whaley, president of Farms, also was its principal stockholder. W. L. Griffith, a vice president, was in charge of management of the whole construction operation. Giardina was job superintendent. James Edward Lee was assistant job superintendent. Raymond Milton Hindel was foreman in charge of the steel placing crew. As Whaley put it: “Mr. Hindel would obey the orders of Mr. Lee, and both Mr. Lee and Mr. Hindel obey the orders of Mr. Giardina, and everybody obey [sic] the orders of Mr. Griffith and Mr. Griffith obeys [mine].” Whaley thus described the status of High Point North at the time: “We were having serious construction problems at the time, which later would have resulted in [a] very serious financial situation.” Griffith pinpointed those problems in the days immediately preceding December 15, 1971 in the following testimony:

“ [0]n the 13th of December, which I believe was a Monday, we were back into operation for the first time after being shut down for over a month when we had problems with the crane. This, as you can imagine in a project, it caused tremendous difficulties. When we got back into operation on the 13th we had been — we were starting to implement a new schedule to try to recover some of the time that had been lost by this crane damage.
“It’s my recollection that we really didn’t work a full day on Monday, that the crane didn’t go in operation until sometime during the day. On Tuesday was the first full day, and I believe it was crucial to this schedule, that we were trying to fulfill, that the night shift work — every part of this schedule had to be fulfilled each day or else the subsequent operations could not take place.
“I heard on that Tuesday night, I believe it was, that the night shift had been laid off, told not to work by Mr. Giardina. So that after having had the schedule in operation for one day, it was already out of phase.
“Late that night, of Tuesday — I assume this is what you want me to do, is to recount this incident — late that night, of Tuesday, Mr. Giardina came into the office at 47th Street, and he and I worked together for, I would suppose, several hours. It was quite late. It was after 11:00 when we finished trying to arrive at a method to get ourselves back on the schedule and to get the job back in track, let’s say, the following morning.”

Griffith then went on to describe his discussion with Giardina on December 15,1971:

“When I arrived at the job, the following morning, which was Wednesday, the 15th, I saw this, as I arrived, that we were — the job, the operations being performed were not the things that Mr. Giardina and I had discussed late the night before. It was this which led to the conversation that has been referred to here. I would say that it was — I was critical of Harry. I, perhaps, spoke harshly. I had been told that sometimes my appearance is that of being more harsh than I mean to be. But, the substance of what I said to Mr. Giardina was if we couldn’t reach an agreement on what we were going to do as late as 11:00 the night before for what we were going to do the following morning, and, then, proceed with it, there was no way that we could make a schedule for the job.
“This is as close as I can recall to my exact words. * * * [M]y recollection is that after that I turned and left the job.”

Giardina confirmed his confrontation by Griffith on the morning of December 15,1971 in the following language:

“ * * * so I started to proceed out to the job site when Mr. Griffith came and met me halfway out in the field, and what he said to me, T wonder why you can’t remember what you did or what you told me eight hours ago’, which I had told him the day before how I was going to set up the cranes for the following day and I couldn’t remember, he said. He just literally let it go, and said that I wonder why you can’t remember. ‘How do you expect to get a building back on schedule if you can’t remember what you told me eight hours ago.’ ”

Giardina then described his immediate reaction to that confrontation:

“I didn’t feel good, and I walked away, for I knew being on the job site, like this, sometimes you do get upset and you get mad and you say things you are not supposed to say. The best thing to do is to walk away from it.”

Although there is complete agreement that Giardina left the job site at 9:30 a.m. on December 15, 1971 and that he never thereafter performed any services for Farms, the reason for his leaving is a subject of dispute. The resolution of that dispute was a cardinal issue for decision by the trial court. Brief references to some of the testimony on the issue will serve to illustrate the conflict in the testimony:

Giardina: “* * * I went home sick that morning of December 15th. * * * I hadn’t been feeling good the day before * * * I guess, about 9:30 or quarter to ten I asked this gentleman to take me home. * * * As I was approaching the trailer, I passed Mr. Whaley coming out of my trailer. I didn’t say anything to him. I walked right on by him and went inside my trailer and told Mrs. Thelma Baker [his secretary], I said, T don’t feel good. I’m quitting for the day, and I’m going to go home.’ * * * I asked * * * Bob Robertson to please drive me home. As we walked out the gate I stopped and I said, ‘Wait, I have got to make — I have got to get Mr. Lee off the building and tell him I’m leaving.’ * * * And I said, ‘I’m not quitting, I’m just quitting for the day. I don’t feel good.’ ”

Giardina acknowledged that he had not disclosed either to Whaley or to Griffith that he was ill on the morning of December 15,1971.

There was testimony by Farms employees in direct conflict with that of Giardina. We shall cite only fragments of such testimony to demonstrate that conflict:

Lee: “* * * Harry [Giardina] said the hell with this job, that I quit, and was going home, and if anybody wanted him they could come after him. * * * Then I told Harry to go in the trailer and to cool off but he said to hell with it, and left the job.”
Hindel: “* * * Harry came out of the trailer with his hat in his hands and coat on outer arm, waving his arms and he called me. * * * he said * * * ‘Get Jimmy, [Lee, then assistant superintendent] I quit * * *.’ And I said ‘Oh, for God’s sakes, go on back in the trailer and sit down and cool off.’ * * * Then he said, ‘ “f” John Whaley, “f” Bill Griffith, and the whole works.’ He said, ‘I’m quitting. Get Jimmy.’ ”

The trial judge in the course of his written opinion stated:

“The threshold question, therefore, is to determine the status of Mr. Giardina with regard to his employment by The Farms Company on and after 10:00 o’clock A.M. on December 15, 1971. The Court specifically finds that Mr. Giardina, as of that time had left the construction site, had quit his job, and had voluntarily left the employment of The Farms Company.”

The testimony previously quoted herein demonstrates that there was abundant evidence to support that finding. We cannot find that his conclusion was clearly erroneous. Rule 1086.

Giardina has raised for the first time in this Court, a contention that his employment by Farms was for a definite term and that he was therefore entitled to notice that his services were being terminated. The issue is not before us. Rule 1085. In any event, our examination of the record shows not a scintilla of evidence to support the contention that Giardina’s employment was for a definite term. To the contrary, all of the evidence shows that his employment was for an indefinite term. In the absence of contract or statutory provisions such an employment contract can be terminated at the will of either party. Washington B & A R. Co. v. Moss, 127 Md. 12, 21, 96 A. 273, 276; Vincent v. Palmer, 179 Md. 365, 370-71, 19 A. 2d 183, 187; Taylor v. Greenway Restaurant, Inc., 173 A. 2d 211 (Mun. Ct. of App., D.C. 1961).

It is quite clear, accordingly, that Giardina, in order to prevail in the specific performance action, must show that there was a lawful acceptance by him of the option granted by the document of September 15, 1969, supra, before 10:00 a.m. on December 15, 1971, when his employment was terminated.

Acceptance of the Option

The undisputed evidence shows that the only written notice by Giardina to Farms was given on December 16, 1971. Giardina contends, however, that Farms had waived the option requirement that “Purchaser shall notify seller in writing of his intention to exercise the option.” He contends further that lawful oral notice had been given, after such waiver and prior to December 15, 1971. Farms denies that it waived the option requirement.

The case of Bio-Ramo v. Abrams, 229 Md. 494, 184 A. 2d 831, is precisely on point and provides the rules of law governing determination whether there is a waiver of a requirement for written acceptance of an option. In Bio-Ramo it is said at 499, et seq. [833-34]:

“While a contract which is required by the statute of frauds to be in writing may not ordinarily be modified by a subsequent oral agreement, Abrams v. Eckenrode, 136 Md. 244, 110 Atl. 468 (1920), the law is well settled that an optionor may, by his words or conduct, waive strict compliance by the optionee of the terms of the option as to a condition precedent, and it is immaterial that the option is a part of the instrument which is required to be in writing under the statute of frauds.
“In Achtar v. Posner, 189 Md. 559, 56 A. 2d 797 (1948), involving an option to renew a three-year lease (made three days before the term began) for another period of three years, upon the giving of written notice within the time specified in the original lease, it was held that a landlord can waive the requirement of written notice from a tenant of his desire to exercise the option to renew the lease and extend the lease upon verbal notice. It is thus apparent that even though the lease in the instant case is within the statute of frauds, as was the lease in the Achtar case, there can be an oral waiver of the condition precedent to the exercise of the option contained therein. As was said in the Achtar case (at p. 563), it is a matter of proof, that is, whether the testimony will ‘reasonably warrant the conclusion that there was a waiver.’
“Other authorities are in accord with the decision in the Achtar case. In 2 Corbin, Contracts, § 310, it is said:
‘If the plaintiff has failed to perform some condition precedent (express, implied, or constructive) to the defendant’s duty under the written contract, and that failure was caused by the defendant himself, can the plaintiff get judgment on the written contract without performing the condition? The answer is clearly yes; and the cases generally support the answer * * *. This assumes that the non-performance of the condition was not caused by the plaintiff’s own inability to perform, and that but for the defendant’s request, agreement, or other conduct, the plaintiff would have performed the condition. K the defendant later repudiates or otherwise breaks the contract, he cannot use the plaintiff’s failure to perform on time as a defense.
‘The foregoing principles apply even where the plaintiff’s non-performance of a condition was caused by an oral agreement substituting something else. This is true even though the oral agreement is itself within the statute and unenforceable, and even though it was the plaintiff and not the defendant who proposed the substitution. If the plaintiff would have performed the condition but for the oral agreement with the defendant, he can enforce the written contract.’
“The statement in 4 Williston, Contracts (3d ed.), § 595, and the Restatement, Contracts, § 224, are to the same effect.” (Footnote omitted.)

We will examine the record in the light of that clear authority.

The testimony of Giardina was replete with references to conversations with Whaley relative to acceptance of the option in the years between its execution on September 15, 1969 and the termination of employment on December 15, 1971.

We will briefly show the general tenor of the differing Giardina and Whaley recollections of early conversations and the detailed respective versions of Giardina and Whaley respecting discussions taking place during December, 1971.

The general

Giardina: “Q Tell us the first occasion, if you recall it?
A About two year, in 1971, I talked to John one day in the trailer, Mr. Whaley, and I told him that I was thinking of exercising the option of buying my house and Mr. Whaley had told me at that time I had a good investment, and the property then had increased in value at least $20,000.00, so I had always had at least $20,000.00 equity in the house.” [I was] thinking about exercising the option, * * *. It was a year before this incident.”
Whaley. “Q From time to time Mr. Giardina had indicated to you that he wanted to exercise this option, did he not?
A Yes, yes, it seemed to be almost a regular thing to me.
Q So you were aware that it was his intention to exercise the option?
A No.
Q No?
A In other words, if someone says to you frequently that they are, that, you know, they are going to exercise an option, or do anything else, you come to discount it. You don’t take it very seriously, and frankly, how I reacted to his telling me that he was thinking about exercising his option. I didn’t — all right, 1 was quite sure that he’d exercise his option at some time in the future, you know, providing everything remained, so he could exercise his option; but I didn’t — I never did take it seriously about his meaning to exercise it tomorrow or a specific date.
Q Well, what purpose would the written notice serve as far as you are concerned?
A To make me take it seriously.”

The Decern her conversations

Giardina: “* * * in the end of November or the beginning of December I had talked to Mr. Whaley and told him I anticipating [sic] exercising the option on my house.
The conversation [with Whaley] that I remember the best is the one we had outside the trailer * * * about the 9th or 10th of December. * * * and I told Mr. Whaley that I had asked Mr. Carlisle to make a letter wp to him saying that I was exercising my option.
And I had told Mr. Whaley, and I said, ‘John, I only doing this because it states in my- option agreement.’ I said, T don’t know too much about legal documents, but I do know that if it states in there you should put it in writing, I am doing it that way.’ And, Mr. Whaley looked at me and said that it wasn’t necessary, that we understood each other and that was all that was said * * *. This was in December of 1971.” (Emphasis added.)
Whaley: “Q Now, getting back to a meeting prior, or just prior to the 15th of December, I think Mr. Giardina or, in fact, Mr. Giardina thought it was the 9th or 10th — it might have been the 11th, so I guess 8th, 9th, 10th, or 11th, he stated that he had a meeting with you in which he said that he was going to have Harry Carlisle write a letter exercising the option, and you said it wasn’t necessary. Do you recall whether or not he did tell you this about Mr. Carlisle and, if so, what your reply to him was?
A Yes, I have some recollection that he said something about getting Mr. Carlisle to — I don’t remember whether it was to write the option or check on the bank or what, but he mentioned Mr. Carlisle in relation to the option. And, I think that I probably responded in the way that I normally thought about it, that I didn’t see the point of exercising the option. Again, I didn’t see, really, what good it did him, but it was up to him. * * *
Q Do you ever recall telling him that it wasn’t necessary to exercise the option in writing?
A No, I really don’t recall telling him that. In listening to the testimony I got the feeling that he was confusing my telling him that I didn’t see the point of exercising the option with the necessity of non-exercising in writing. * * *
Q Well, now, did there come a time when Harry Giardina told you that he was having Harry Carlisle prepare the written exercise of the option?
A I believe so. I don’t have a very specific recollection about that, but I do think that he did tell me that.
But, once again, Mr. Fox, you have to understand the timing and the circumstances. I believe we were — it’s difficult to reconstruct this. It’s somewhat an emotional time, but our principal concern at that time in December was to get this job back on some kind of a proper footing, and I considered the job to be in very — to be in very deep and serious trouble.
Talking about an option in that period of time, I mean, it would have required something like an exercise in writing before it really — before I would have taken it seriously, particularly in view of the history.
In other words, Mr. Giardina could have said to me that he was having Harry — what I seem to recall, he wanted Harry to write the option, and I told him I didn’t see what the necessity of having Harry write the option. He could write it himself. It only took one-sentence. And, so, I think, he probably did say something to that effect to me, but I didn’t — again, I didn’t consider it an exercise of the option in the context.
It came as something that he had done before, and it came at a time when everyone’s focus, including his, I presume, was on the other problems that didn’t relate to this.” (Emphasis added.)

Bio-Ramo v. Abrams, supra, said (p. 500 [834]): “* * * it is a matter of proof, that is, whether the testimony will ‘reasonably warrant the conclusion that there was a waiver.’ ” There can be no doubt that the testimony of Giardina, if believed, would permit of a factual conclusion that Whaley in December, 1971 had waived for Farms the requirement for written acceptance of the option. There equally can be no doubt that the evidence would permit of a factual conclusion to the contrary. The written opinion of the trial judge thus resolved this factual issue:

“The Court turns now to a brief consideration of the efforts made by Mr. Giardina to furnish the written notice to exercise the option. Mr. Giardina, incidentally, attempts to establish a waiver of this written intention through testimony with regard to several conversations between himself and Mr. Whaley. Mr. Whaley, of course, does not agree with the substance, content, or intent of those various conversations. Sometimes, however, actions speak louder than words, and it is difficult for the Court to reconcile Mr. Giardina’s position of waiver with his frantic efforts between December 13th and December 15th to secure a written document.
“Mr. Giardina, himself, testified that he had called Mr. Harry T. Carlisle two or three times with regard to this letter, and that, on one occasion, he called the bowling alley, where he might find Mr. Carlisle, at the suggestion of Mrs. Carlisle. Mr. Carlisle testified that the first record of a call from Mr. Giardina to ask that he prepare the written exercise of the option was on December 13th. On December 14th, between 7:00 o’clock P.M. and 9:30 P.M., his wife received a call at their home from Mr. Giardina, whereupon, she gave Mr. Giardina the bowling alley number, at which Mr. Carlisle was reached. According to Mr. Carlisle, Mr. Giardina’s voice exhibited a great amount of anxiety. On December 15th, at about 4:30 P.M., he received another call from Mr. Giardina, and, at that time, promised him that he would have the letter in Mr. Giardina’s hands the next morning. On that morning, Mr. Carlisle asked his associate, Mr. David Day, according to Mr. Day, to wait in the Salisbury Office until the letter could be typed, take it to Mr. Giardina, have it signed, and deliver it to Mr. Whaley. This activity was completed before lunch, but Mr. Day does not remember what he did with the letter. Mr. Whaley remembers receiving the letter from Mr. Day, and replying, ‘that’s null and void.’ No definite reason can be ascribed to Mr. Giardina’s flurry of activity, in this regard, at this crucial point in time, but it is sufficient to excite one’s curiosity and suspicion. It does prove, however, that Mr. Giardina did not seriously believe that the requirement for a written notice to exercise the option, as clearly specified in the agreement, had been waived. The Court specifically finds that the Complainant has failed to prove by a fair preponderance of the credible evidence, to thus persuade the Court, that the requirement for written notice had been waived by Mr. Whaley as President of The Farms Company.”

That Giardina had asked Harry Carlisle to prepare a written acceptance of the option prior to December 15, 1971 is uncontroverted. This circumstance does not, however, improve Giardina’s position. There is not a scintilla of evidence that Carlisle possessed the real or apparent authority to bind Farms to a waiver of the requirement for written acceptance of the option. Thus, a verbal notice to Carlisle was of no greater effect than a verbal notice to Whaley.

We find no error of law by the trial judge. Under such circumstances, we are not permitted to substitute our judgment for that of the chancellor. In Schremp v. Dubrowin, 257 Md. 623, 263 A. 2d 827, it was said at 632 [831-32]:

“As to the chancellor’s findings of fact this Court has unequivocally stated many times that it is bound by those findings unless it appears that the court below was clearly erroneous. Rule 886, Maryland Rules of Procedure. Examining Judge Macgill’s findings and the Schremps’ contentions in this light, we find no basis for holding the chancellor’s factual determinations to be clearly erroneous. It is true, as the Schremps claim, that there is much conflicting evidence in the case from which the lower court might have drawn different conclusions. However, the weighing of conflicting evidence is entrusted to the chancellor alone, for only he has had the first-hand opportunity to judge the credibility of all the evidence and the inferences to be drawn from the evidence. We believe that the record clearly shows that the chancellor carefully detailed and weighed all of the evidence on each issue and was amply supported in each of his findings of fact by evidence in the case.

Similarly, in the subject case, the trial judge correctly ruled that the right of Giardina to specific performance turned upon the question whether there was a waiver of the necessity for written notice of acceptance. On the basis of conflicting evidence he concluded that Giardina had failed in his burden of proof. We cannot say his conclusion was clearly erroneous. Maryland Rule 1086.

Judgment- affirmed.

Costs to be paid by appellant.

      . Both Giardina and Farms agree that there had been an earlier verbal understanding of similar tenor and that it was reduced to writing at the instance of Giardina.

      . The Book of Common Prayer.


text:
    IN RE APPEAL NO. 568, September Term, 1974 from the Circuit Court of Baltimore City, sitting as a Juvenile Court
    [No. 568,
    September Term, 1974.]

      Decided March 14, 1975.

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

      Arnold Zerwitz, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, George E. Burns, Jr., and Alan H. Silverberg, Assistant Public Defenders, on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City and Clarence Long, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The appellant, a male child fourteen years of age, was adjudged to be a delinquent by the Division of Juvenile Causes in the Circuit Court of Baltimore City (Hammerman, J., presiding) and committed to the Department of Juvenile Services.

In this appeal it is contended that “[tjhere was no proof of ownership of the property the appellant allegedly attempted to take and therefore the evidence is insufficient to sustain the conviction.”

A uniformed Baltimore City police officer testified at the hearing below that about 4 p.m. in the afternoon of April 30, 1974, he and a fellow officer “were working a purse snatch, pickpocket detail in the downtown area * * *.” According to the officer, they were standing in the display window of a department store at the corner of Howard and Lexington Streets when he observed “a white female, approximately thirty-five years of age, approach the intersection * * * followed closely by two black male youths. * * * I observed one of the youths [whom he identified as appellant] reach over with his right hand and lift up a flap to her purse which was hanging from her left shoulder, reach inside of her purse.” He “notified my partner” and as they left the store, “I observed another black male that was in company of the first male reach over and place his hand in the purse at which time he saw myself and the other officer entering the scene.” Both youths “broke and ran” in opposite directions. They were pursued by the officers and both were apprehended. The intended victim, who was apparently unaware of what had been taking place, disappeared into the crowd and has never been located.

The appellant did not testify.

In this factual posture, appellant contends that the evidence before the juvenile judge was legally insufficient to establish an attempted larceny because the State failed to produce the intended victim as a witness and failed to prove what her pocketbook contained. To establish the crime of larceny, the appellant contends, it is necessary to prove “ownership of the property alleged to have been stolen * * citing Wersten v. State, 228 Md. 226, 228, and Lee v. State, 238 Md. 224. From this, he argues that “the attempt is, in this case, no different from the completed offense” and since “[n]ot a single word in the case at bar was offered to show that the ‘unknown female’ had any legal interest in the property the Appellant allegedly attempted to take,” a finding that he was guilty of attempted larceny and, therefore, a delinquent must fall.

While we do not quarrel with appellant’s premise that proof of ownership, or at least a possessory interest in the property attempted to be stolen, is an essential ingredient to a conviction of larceny, Santoni v. State, 5 Md. App. 609, 622, we cannot subscribe to his proposition that there is no difference between the legal requisites to establish the crime of larceny and the legal requisites to establish the crime of attempted larceny.

The appellant, in effect, argues that without the testimony of the victim there was no proof that her purse contained anything of value. This being so, he asserts that “the instant case is a classic legal impossibility situation.” It is certainly true that “[ljegal impossibility to commit the intended crime may be a valid defense and where the impossibility arises by operation of law the accused cannot be convicted of an attempt.” Waters v. State, 2 Md. App. 216, 226. On the other hand, the cases and text authorities delineate a distinction between a “legal impossibility” to commit the intended crime and what has been termed “factual impossibility” to commit the crime. While the distinction may be clear or cloudy, depending upon the factual circumstances in which the issue arises, there nevertheless is a distinction. Thus, “legal impossibility” may excuse the attempt to commit an intended crime but “factual impossibility” will never serve as a valid defense to such conduct.

In Waters, supra, it was pointed out that at common law a boy under 14 years of age could not be found guilty of rape and, therefore, it was legally impossible for him to be found guilty of attempted rape. On the other hand, “[p]hysical incapacity to commit a crime does not affect the capacity of one to be guilty of an attempt. Thus a man who is physically impotent may be guilty of an attempt to commit rape.”

Focusing the distinction somewhat closer to the factual situation presented in the case before us, it is stated in Clark and Marshall, A Treatise on the Law of Crimes, 7th ed., § 4.10:

“According to the decided weight of authority, both in England and in this country, an apparent possibility to commit the intended crime is sufficient. The fact that conditions exist which render the actual consummation of the crime impossible does not prevent the party from being guilty of an attempt, if the conditions are not known to him. Thus, it has repeatedly been held that a person who attempts to pick another’s pocket is guilty of an attempt to commit larceny, though there is nothing in the pocket.”

See also 1 Wharton’s Criminal Law and Procedure (Anderson Ed. 1957) § 78, pp. 162-164; Perkins on Criminal Law, Ch. 6 § 3A, pp. 492-493; 52 A C.J.S., Larceny, § 67, p. 500.

An examination of the cases throughout the country gives ample support to this conclusion. For example, as early as 1862 the issue was addressed in State v. Wilson, 30 Conn. 500 (1862) when a transient was arrested for attempting to pick the pocket of an unknown woman. Because the State was unable to prove the value, if any, of monies or other items which the unidentified woman may have had in her pocket, counsel for the defendant argued “that without proof of the name of the woman, and the fact that there was property in her pocket” the conviction must fail. The argument was rejected, the court noting that the offense of attempt was complete regardless of whether the woman, in fact, had valuables in her pocket. See also Annot. 37 A.L.R.3d 375; Gargan v. State, 436 P. 2d 968 (Alas. 1968); People v. Richardson, 207 N.E.2d 453 (Ill. 1965); State v. Meisch, 206 A. 2d 763 (N.J. Super. Ct. 1965); People v. Twiggs, 35 Cal. Rptr. 859 (Dist. Ct. App. 1963); People v. Fiegelman, 91 P. 2d 156 (Dist. Ct. App. 1939); Commonwealth v. Cline, 100 N. E. 358 (Mass. 1913); People v. Moran, 25 N. E. 412 (N.Y. 1890); People v. Jones, 9 N. W. 486 (Mich. 1881).

Perhaps the closest Maryland case to address the issue is Franczkowski v. State, 239 Md. 126, where it was said, at 126-127:

“The question presented by this appeal, as to whether an attempt to obtain money or other property by a false pretense has been committed when the potential victim was not deceived and did not part with any money or property, is a novel one in this State.”

There, the accused had presented a stolen money order to the manager of a store who suspected that it might have been stolen. He had the accused sign it and then left the store, ostensibly for the purpose of getting it cashed, and returned with a policeman who arrested the accused. The Court stated, at 127-128:

“Although the defendant contends that he should not have been convicted of attempting to obtain money by false pretenses because the potential victim was not in fact deceived, the law is to the contrary. It is true, as was said in Davis v. State, 229 Md. 129, 141, 182 A. 2d 49, 50 (1962), that ‘an essential element of obtaining money by false pretenses is that the victim actually relied upon the false representation,’ but the cases and the text writers make it clear that a distinction is drawn between the completed crime and an attempt to commit it. [Citations omitted.]
The elements of attempt to obtain money by a false pretense, like other attempts to commit a crime, are an intent to commit it, the doing of some act towards its commission, and the failure to consummate its commission. Wiley v. State, 237 Md. 560, 207 A. 2d 478 (1965). And it is not necessary in order to establish an intent that the potential victim was deceived and had parted with money or property. [Citations omitted.] As was said in Whitley v. Warden, 209 Md. 629, 120 A. 2d 200 (1956), cert. den. 351 U. S. 929 (1956), one may be innocent of an act but guilty of an attempt to commit it.” [Footnote omitted.]

In the case at bar, it is perfectly evident that appellant attempted to place his hand into the unknown victim’s purse and it is certainly a rational inference that he intended to appropriate to himself anything of value which may have been there. His mission was thwarted when he realized his actions were being observed by a uniformed policeman and he thereupon “cut and ran.” That the State was unable to prove what the pocketbook contained, or to establish the ownership of an article it might have contained, does not, under the authorities, prevent his action from constituting an attempted larceny. Had the purse been empty, he could not have been found guilty of larceny. His possible innocence of larceny, however, does not preclude his guilt of attempting to commit it.

The appellant’s related contention that “the trial court erred in not dismissing the [juvenile] petition for its lack of specificity” is wholly without merit. Maryland Rule 903 b 4 simply requires that the juvenile petition contain:

“4. Facts.
A statement in simple and nontechnical language of such facts on which the action is based as are sufficient to establish the court’s jurisdiction.”

The petition in the case at bar provided:

“* * * in company with * * * unlawfully did attempt to steal, take and carry away the goods, chattels, monies and/or property of an unknown female, in the presence of two complaining officers of the Baltimore City Police Department.”

The petition was sufficiently specific under the circumstances.

Judgment affirmed.

      . Maryland Rule 1097 prohibits use of a juvenile’s name.


author: Orth, C. J.,

text:
    RAYMOND KIGHT et ux. v. WILLIAM BOWMAN et ux.
    [No. 579,
    September Term, 1974.]

      Decided March 14, 1975.

    The cause was argued before Orth, C. J., and Davidson and Melvin, JJ.

      Thomas L. Beight for appellants.

      Timothy J. Bloomfield for appellees.
   Orth, C. J.,

delivered the opinion of the Court.

STATEMENT OF THE CASE

By an ex delicto action instituted in the Circuit Court for Montgomery County, Raymond Kight and Carmen T. Kight, his wife, are seeking to recover damages from William Bowman and wife (the Bowmans); Joseph G. Moore and wife, individually and as partners trading as Moore Contractors (the Moores); and Eugene R. Roberts (Roberts). We are concerned on this appeal only with the action with respect to the Bowmans.

In the original declaration, filed on 11 August 1972, Roberts did not appear as a party. The Bowmans were sued in the 1st count by Mrs. Kight, in the 3rd count by Mr. Kight, and by both of them in the 5th count. The Bowmans demurred to the counts against them, and, on 5 January 1973, by order of Moorman, J., the demurrer was sustained with leave to amend in 15 days. It was not amended within the time set. On 25 April 1973, however, the Kights filed an amended declaration which named the defendants in the original declaration and added Eugene R. Roberts as an additional defendant. The Bowmans were sued in counts 1, 5, and 8, and those counts were identical to counts 1, 3, and 5 of the original declaration. The Bowmans again demurred as to the counts against them. By order of 10 May 1974 of Mitchell, J., the demurrer was sustained without leave to amend, and final judgment was entered in favor of the Bowmans for costs. Judge Mitchell vacated that order and judgment by his subsequent order of 23 May, and set the matter for hearing. Upon hearing before Moorman, J., the demurrer was again sustained without leave to amend as to counts 1, 5, and 8, by order of 19 July. Maryland Rule 345 e. See Golden Hill Dev. Co. v. Unger, 267 Md. 26. On 25 July final judgment in favor of the Bowmans was entered upon the express determination of Judge Moorman that there was no just reason for delay and upon an express direction by tl e court for the entry of judgment. Rule 605 a; Frericks v. Baines, 16 Md. App. 343. The Eights appealed from the judgment, reserving the right to proceed against the other defendants.

THE ISSUE FOR DECISION

The sole issue for decision is the propriety of the order of 19 July 1974 sustaining the demurrer to counts 1, 5, and 8 of the amended declaration without leave to amend.

When the propriety of an order sustaining a demurrer to a declaration without leave to amend is considered by an appellate court, it is required to assume, for the purposes of the ruling, the truth of all material and relevant facts that are well pleaded as well as all inferences which can be reasonably drawn from those well pleaded facts. This, said the Court of Appeals in Schwartz v. Merchants Mort. Co., 272 Md. 305, 307, “we have said so often that extensive citations are unnecessary.” Therefore, assuming the truth of all such factual allegations, we must determine whether the amended declaration states a cause of action against the Bowmans.

THE FACTS

Each of counts 1, 5, and 8 sought damages against the Bowmans as a result of their negligence. By the 1st count Mrs. Eight prayed $20,000 because of injuries suffered by her. By the 5th count Mr. Eight prayed $5,000 for money expended and to be expended for medical treatment for Mrs. Eight. By the 8th count Mr. and Mrs. Eight prayed $5,000 for loss of consortium. Counts 5 and 8 incorporated by reference all the allegations contained in the 1st count. We set out the material and relevant facts alleged in the declaration, largely in the words therein used with only minor editing.

The Eights and Bowmans lived next door to each other on Regina Drive in Silver Spring, Maryland in dwellings which they respectively owned. About 8:30 o’clock on the morning of 24 April 1974, Mrs. Eight left her house intending to drive to work. She discovered that she did not have her keys. In the past she had gone to the Bowman house many times as a result of reciprocal invitations that were extended each to the other property owners on numerous occasions, and she went there on this occasion to use the Bowman telephone. After knocking on the front door and getting no response, she heard noises in the rear yard and went around towards the rear of the yard. She was struck on the head without any warning by a piece of falling rain gutter and fell to the ground momentarily unconscious. Upon regaining consciousness she discovered that the gutter had been removed and discarded by an employee of the Moores acting within the scope of his employment. The Moores had been engaged by the Bowmans to remove and replace the gutters on their home and to install aluminum siding on a rear second-story dormer. The employee did not look down to clear the rear yard area before he threw the piece of gutter to the ground. The Bowmans did not warn Mrs. Eight of the work in progress. Mrs. Eight was exercising due care for her own safety and was without knowledge of the hazardous work. The Bowmans engaged the Moores because they were the lowest bidders for the job of several contractors bidding. The Bowmans hired the Moores without ascertaining the qualifications, experience, financial integrity or reference of the Moores, and therefore, hired a company which did not adequately supervise or train its employees to do a hazardous job, and this negligent hiring was the proximate cause of Mrs. Eight’s injuries. Mrs. Eight, at the time of the injury and at all times before, was without knowledge of the hazardous work. The Bowmans, however, had such knowledge and took care to advise and warn members of their family of the work in progress but did not warn Mrs. Eight. Mrs. Eight’s injuries and the resulting damages were due to the negligence of the Moores, their employee, and the Bowmans.

THE LAW

To state a cause of action in negligence, the plaintiff must allege a duty owed by the defendant to the plaintiff, a breach of that duty by the defendant, and damage to the plaintiff as a result of that breach. Bramble v. Thompson, 264 Md. 518, 520-521. In the frame of reference of this case, the Bowmans could owe a duty to Mrs. Eight only through her presence on the Bowman property. Therefore, the first inquiry is with respect to her status on the property.

A person may be upon another’s property as an invitee, a licensee, or a trespasser. They were defined in Bramble v. Thompson, supra, at 521-522. An invitee is one invited or permitted to enter or remain on another’s property for purposes connected with or related to the owner’s business. A licensee is one privileged by virtue of proper consent to enter for his own purpose or convenience onto another’s property. There are two types of licensees, a bare licensee and a licensee by invitation, or social guest. A trespasser is one who intentionally and without consent or privilege enters another’s property.

We believe that on the facts alleged, Mrs. Eight was a bare licensee. On the day she was injured, Mrs. Eight “left her home intending to drive to work without realizing that she left without her keys.” She went to the Bowman house “to use their phone”. Even though she had gone to the home of the Bowmans “many times in the past as a result of reciprocal invitations that were extended each to the other property owners on numerous occasions”, she went on this occasion, not for a social visit, but to use the telephone. In the circumstances, she was, at best, a licensee, but only a bare licensee, not a licensee by invitation.

We are aware of the discussion of the term “social guest” in Paquin v. McGinnis, 246 Md. 569, 572-574. Paquin first decided in this jurisdiction the duty of a home owner to a “social guest”, equated in Stevens v. Dovre, 248 Md. 15, at 18, with “licensee”, and in Telak v. Maszczenski, 248 Md. 476, 483 with “licensee by invitation”. The discussion in Paquin was manifestly in the frame of reference of the duty owed to a “social guest”, not in terms of whether the injured party was a “social guest” vel non. As in Paquin, it was not disputed in Stevens, in Telak, and in Lester v. Dunn, 436 F. 2d 300 (D.C. Cir. 1970), applying Maryland law, that the injured person was a social guest, that is a licensee by invitation, and the discussion in each was in that context. We see nothing in those cases to lead to the view that Mrs. Eight was more than a bare licensee under the circumstances of her presence on the Bowman property.

Our inquiry turns to the duty owned by the Bowmans to Mrs. Eight as a bare licensee. “A bare licensee takes the property as he finds it and, like a trespasser, he is owed no duty by the owner except that he may not be wilfully or wantonly injured or entrapped by the owner once his presence is known.” Bramble v. Thompson, supra, at 521, citing Crown Cork and Seal Co. v. Kane, 213 Md. 152, 157; Carroll v. Spencer, 204 Md. 387, 393; Peregoy v. Western Md. R. R. Co., 202 Md. 203, 207. See Telak v. Maszczenski, supra, at 483.

DECISION

Thus Mrs. Right took the Bowman premises as she found them. Neither the facts nor any inference which can be reasonably drawn from them indicate that the Bowmans knew of Mrs. Right’s presence. Jackson v. Penna. R. Co., 176 Md. 1, 10. They were guilty of no breach of duty to her. In this respect the amended declaration was insufficient as a matter of law insofar as it concerned the Bowmans. See Hicks v. Hitaffer, 256 Md. 659, 661.

The Rights also claim that the Bowmans did not exercise proper care in selecting the independent contractor. They allege that the “primary negligence” of the Bowmans “was in their selecting a contractor who was not capable of safely and competently performing the contractual tasks.” Accepting as true that the Bowmans were negligent in entering into a contract with the Moores, this was no breach of a duty owed by them to Mrs. Right in her status as a bare licensee. The only authority cited by the Rights in support of this contention is Curley v. General Valet Service, 270 Md. 248 which dealt with an employer’s negligent entrustment of an automobile to an employee and is not apposite. We observe that the Court said in Bohlen v. Glenn L. Martin Co., 193 Md. 454, 462-463:

“When an owner of land employs an independent contractor to do work which of itself is not a nuisance or where the necessary or probable effect would not be to injure others, the employer is not liable for such negligence as is entirely collateral to, and not a probable consequence of the work for which the contract was made, Smith v. Benick, [87 Md. 610].”

See Associates Discount v. Hillary, 262 Md. 570; Schmidbauer v. Baltimore and Pittsburgh Motor Express Co., 228 Md. 637. In this respect the amended declaration was insufficient as a matter of law insofar as it concerned the Bowmans. We find that the amended declaration did not state a cause of action against the Bowmans. We hold that the order of 19 July 1974 sustaining the demurrer to counts 1, 5, and 8 of the amended declaration without leave to amend was proper.

Judgment affirmed; costs to be paid by appellants.

      . The Rights present the question: “Assuming the truth of all allegations contained within Counts I. V and VIII of the Amended Declaration, did Appellants fail to state a cause of action agains; the Appellees upon which relief could be granted?”
      The Bowmans put it thus: “Whether the Circuit Court properly sustained a demurrer to a declaration alleging negligence by property owners (appellees) when the facts alleged in the declaration show that plain tiff-appellant was not an invitee on the property and that the property owners are unaware of, and had no reason to anticipate, plaintiff-appellant’s presence on the property?”

      . In their brief the Kights assert that they “allege in their Amended Declaration that Mrs. Kight was a social guest or licensee by invitation and not a bare licensee.” We do not find this statement in the amended declaration.

      . With respect to an invitee, the owner must use reasonable and ordinary care to keep his premises safe and to protect the invitee from injury caused by an unreasonable risk which the invitee, by exercising ordinary care for his safety, will not discover. Morrison v. Suburban Trust Co., 213 Md. 64, 68-69.
      The only duty of care a property owner owes to a trespasser, even one of tender years, is to refrain from wilfully or wantonly injuring the intruder. Mondshour v. Moore, 256 Md. 617, 619.
      A licensee by invitation is a social guest who takes the premises as his host uses them. In general, the legal duty owed him by the host is to take the same care of the guest as the host takes of himself or members of his family. He must exercise reasonable care to make the premises safe for his guest or he must warn the guest of known dangerous conditions that cannot reasonably be discovered and which in fact are not uncovered by the guest. Paquin v. McGinnis, supra. See Bramble v. Thompson, supra, at 521-522. We observe that in the reported appellate cases in this jurisdiction dealing with the duty owed by a host to a licensee by invitation, the host was aware of the guest’s presence. None of the cases reach the question of the extent of such duty when the host had no actual knowledge that his guest was on the premises. There is substantial authority, however, that a guest can recover only where his injury is the result of active and affirmative negligence of the host while the guest was known to be on the premises, or of the failure of the host to remove or warn against defects amounting to a trap or pitfall known by the host to present a danger to the guest, and which he also knows the guest will not, in the exercise of reasonable care, discover and avoid for himself. See Annot. entitled “Liability for injury to guest in home or similar premises”, 25 A.L.R.2d, 598, 600. See also Lomberg v. Renner, 157 A. 2d, 222, 225 (Vt. 1959); Lubenow v. Cook. 79 A. 2d 826, 828 (Conn. 1951); comment i to Restatement (second) of Torts § 342 (1965), entitled “What constitutes reasonable care to warn”, and comment h to that section.

      . Admitting “that a principal may hire an independent contractor and thereby relieve himself of any liability for the negligence of the contractor. . . .”, the Rights make no claim of vicarious liability on the part of the Bowmans.


text:
    R. W. BEVERUNGEN, JR., et al. v. HENRY A. BRIELE et al.
    [No. 592,
    September Term, 1974.]

      Decided March 14, 1975.

    The cause was argued before Orth, C. J., and Davidson and Melvin, JJ.

      Richard T. Rombro, with whom were Wartzman, Rombro, Rudd & Omansky, P.A. on the brief, for appellants.

      John F. King and Richard Bloch, with whom were Anderson, Coe & King on the brief, for appellees.
   Orth, C. J.,

delivered the opinion of the Court.

The sole question presented on this appeal is whether a chiropractor may be designated a “Chiropractic Physician”.

STATEMENT OF FACTS

In an action for a declaratory judgment and injunction brought in the Circuit Court of Baltimore City by appellees (M. D.’s) against appellants, (Chiropractors) the chancellor issued a decretal order on 25 July 1974 that Chiropractors “are hereby permanently restrained and enjoined from the use of the term ‘physician’ by itself or in combination with other words, in any printed or written form.” Chiropractors, aggrieved by the order, noted a timely appeal therefrom, and would have us reverse it. M. D.’s, satisfied with the determination of the action, urge that it be affirmed.

THE FACTS

In paragraph 1 of an “Amended Bill of Complaint for Declaratory Judgment and Injunction” , M. D.’s alleged that they constituted the entire Executive Committee of the Medical and Chirurgical Faculty of the State of Maryland, that each was licensed to practice medicine and surgery in Maryland, and that each was presently engaged in such practice. Chiropractors’ Answer, stating that they were without knowledge as to these allegations, operated as a denial. Maryland Rule 372 a 2. Chiropractors admitted the allegations of paragraph 2 that each of them was licensed to practice chiropractic in Maryland. Paragraph 3 alleged that each of Chiropractors “uses in printed or written form the term ‘physician’, by itself or in combination with other words and in conjunction with their names, on business-head stationery, upon office signs, or upon advertisements, or a combination thereof.” Chiropractors denied that any of them used “physician” by itself, but admitted that “many” of them “have used” and “do use” the word “physician”.

Evidence was adduced only by way of stipulation. Although neither a written stipulation nor a transcript of an oral stipulation appears in the record before us, from the opinion of the court below and from the briefs filed, it appears that it was stipulated that the allegations in paragraphs 1 and 2 of the Bill were correct, and that each of Chiropractors has used the phrase “Chiropractic Physician” in connection with his practice, but that none of them used the word “Physician” alone.

THE LAW

Whether a chiropractor may use the designation “Chiropractic Physician” has been worrisome for many years, but has not been definitively decided by an appellate court in this jurisdiction. The issue has not only bothered chiropractors and the Board of Chiropractic Examiners but also medical doctors, the Board of Medical Examiners, and the Medical and Chirurgical Faculty of the State of Maryland.

In 1923 a chiropractor was holding himself out to be a “chiropractic physician”. The Board of Chiropractic Examiners felt that the use of the word “physician” was “an attempt to practice chiropractic under a false name with the idea of creating the impression in the minds of the public that he is actually a physician.” It asked the Attorney General of Maryland if it would be justified in revoking his license. General Alexander Armstrong found that the Board had no statutory power to do so “although the practitioner in question may have no legal right whatever to describe himself as a chiropractic physician.” The Attorney General suggested that the Board call to the attention of the licensee “the fact that in the judgment of the Board he is using an improper term and request that he refrain hereafter from doing so.” 8 Opinions of the Attorney General 418 (1923).

In 1930 the Board of Chiropractic Examiners twice sought the opinion of the Attorney General. On 29 January it asked who was the proper person to sign a death certificate in case of death of a patient with a chiropractor in attendance. The Attorney General referred to what was then Code, Art. 43, § 21, providing that death certificates “shall be filled out and signed by the physician last in attendance upon the deceased person within 24 hours after death, excepting in such cases where the body is viewed by the coroner and an inquest is held upon the same, in which case the certificate of death shall be filled out and signed by the coroner.” There were further provisions in case of death without “medical attendance” or violent death in which the coroner did not deem it necessary to hold an inquest. It was the flat opinion of the Attorney General that chiropractors, not being physicians, were not authorized to execute death certificates. 15 Opinions of the Attorney General 62 (1930). On 28 November the Board asked whether a chiropractor could prescribe diets. The Attorney General opined that it was unlawful for chiropractors in Maryland to prescribe diets. The rationale of the opinion, like the rationale of the prior opinion, was that a chiropractor was not authorized to practice medicine. Because the prescribing of diets as remedies was the practice of medicine, chiropractors could not lawfully prescribe them. 15 Opinions of the Attorney General 63 (1930).

On 27 October 1931 the Board of Chiropractic Examiners requested an opinion of the Attorney General whether a licensed chiropractor was a “physician” in Maryland. The Attorney General replied that the term “physician” as used in the statutes meant “one who is authorized to practice medicine or surgery.” He quoted what was then Code, Art. 43, § 384, providing that licensed chiropractors “shall not prescribe for or administer to any person any medicine or drugs now or hereafter included in materia medica, practice major or minor surgery, obstetrics, nor any other branch of medicine, nor practice osteopathy.” He concluded that “a chiropractor is not a ‘physician’ in the State of Maryland.” 16 Opinions of the Attorney General 73 (1931).

The latter part of 1939 the question of the use of the term “chiropractic physician” by a licensed chiropractor was again presented to the Attorney General by the Board of Chiropractic Examiners. Deputy Attorney General William L. Henderson, later Chief Judge of the Court of Appeals of Maryland, and Assistant Attorney General Robert E. Clapp, Jr., later Associate Judge of the Sixth Judicial Circuit, replied. 24 Opinions of the Attorney General 172 (1939). They noted that there were no statutory provisions prohibiting the use of designated titles by licensed chiropractors and referred to the opinion in 8 Opinions of the Attorney General 418. They pointed out that Art. 13, § 386 had been amended to give the Board the additional power of revoking the license of a chiropractor for “the attempt to do other than is permitted under this license in an effort to deceive the public.” Citing 16 Opinions of the Attorney General 73 to the effect that a chiropractor is not a physician, they thought lhat by the use of the term “chiropractic physician”, a chiropractor may create the impression in the minds of the public that he is a physician. This assumption, they said, as to the misleading character of the term “physician” was based on the fact that under the statutes “physician” is used as indicating one who is licensed to practice medicine and is borne out by the definition found in Webster’s Dictionary that a physician is one who practices medicine. The opinion continued:

“We realize that it has always been customary for a person licensed to practice chiropractic to describe himself as a ‘Doctor of Chiropractic,’ but there is a distinction in this phrase in that the title ‘Doctor’ has no definite relation to the practice of medicine, since it may mean, one licensed to practice dentistry, one who has been given an honorary degree, such as Doctor of Philosophy, or one who is a Doctor of Divinity. In other words, the title ‘Doctor’ requires some further description in order to indicate the profession of the holder, whereas, as shown above, the term ‘physician’ as used in our statutes, exclusively describes a practitioner of medicine and requires no further description to indicate the profession of the holder.” At 173-174.

The conclusion was that if the Board found that the chiropractor was using the term “chiropractic physician” in an effort to deceive the public, it could, by appropriate proceedings, revoke the license. It was suggested that the Board call the attention of the chiropractor to the “misleading character” of the term “chiropractic physician” and suggest that its use be abandoned because of deception of the public. “If the use is then continued, your Board could quite justifiably find that the deception is intentional and may, from that, find grounds for the revocation of the license.” At 175.

The opinion of the various Attorneys General that the practice of chiropractic was not the practice of medicine first received the imprimatur of the Court of Appeals of Maryland in 1949 in Crider v. Cullen, 191 Md. 723. “[L]ong before practice of osteopathy or chiropractic was licensed, practice of those callings was excluded from unlawful practice of medicine, not by declaring it to be lawful practice of medicine without a license, but by declaring it not to be regarded as practice of medicine at all. This still is . .. the statutory distinction between practice of medicine and practice of chiropractic in Maryland.” At 730. The Court declared and iterated that under statutory definitions and other statutory provisions “chiropractic treatment is not medical care.” Id. Then in Osborne v. Talbot, 197 Md. 105, 111, decided in 1951, the Court of Appeals, citing Crider, declared: “A chiropractor is not a physician; his profession or calling is not the practice of medicine.” And a year later, it again affirmed Crider and followed Osborne by stating in Maurer v. Snyder, 199 Md. 551, 561: “In the professional aspect a chiropractor is not a physician . ...” ***

In 1958 the Attorney General was asked by a clerk of a circuit court if a licensed chiropractor could certify to a girl’s pregnancy with respect to the issuance of a marriage license. In holding that a chiropractor could not, the Attorney General affirmed the previous view that a chiropractor was not a physician and may not use the term “chiropractic physician.” 43 Opinions of the Attorney General 235 (1958).

In 1961 the Attorney General was again asked if it was lawful for a licensed chiropractor to use the term “chiropractic physician.” The inquiry this time was from the Board of Medical Examiners and was prompted by a letter to it from the Board of Chiropractic Examiners. The Board of Chiropractic Examiners had concluded, erroneously in the opinion of the Attorney General, that “there is nothing in either the chiropractic or medical practice laws which would authorize a prohibition of the use of the term ‘chiropractic physician’.” Upon reviewing prior Attorney General opinions, the statutory definition of chiropractic and the provisions of the Medical Practice Act, the Attorney General concluded “that use by a chiropractor of the terms ‘chiropractic physician’ is in violation of the medical practice act, if such chiropractor is not, in fact, a ‘physician’ and authorized to practice medicine and surgery in the State of Maryland.” 46 Opinions of the Attorney General 36 (1961).

We find no change in the statutory law and no appellate decision in this State which would justify a departure from the view of the Court of Appeals that the practice of chiropractic is not the practice of medicine and that a chiropractor is not a physician. Appellants do not contend that the practice of chiropractic is the practice of medicine, agreeing that the practice of chiropractic is not encompassed within the practice of medicine as defined in § 119 of Art. 43 and, in fact, is expressly excluded by subsection (g) (6) which provides that the practice of medicine does not include “Practicing any profession otherwise registered, certified or licensed and defined by law.” “Chiropractic” is defined by Code, Art. 43, § 504 (c) to be “a drugless health system, the basic principle of which teaches that disease may be caused by interference with the transmission of nerve impulses”. Expressly not included within the definition of “practice of chiropractic”, however, are “the use of drugs, surgery, obstetrics or osteopathy, nor any branch of medicine. ...” In the “Practitioners of Medicine” subtitle of Art. 43, “physician” is defined in § 119 (e) to mean “any person, including doctors of osteopathy, licensed to practice medicine in the State of Maryland in compliance with the provisions of this subtitle.” Although defined in affirmative terms, and “as used in this subtitle”, it is clear that the legislative intent was that “physician” apply only to persons so licensed to practice medicine. We find this manifest in the use of “physician” in various other subtitles of Article 43. Chiropractors suggest that the legislature intended to restrict the meaning of “physician” as defined in the subtitle, “Practitioners of Medicine”, to that subtitle. We believe it clear that it did not.

DECISION

In view of the specific meaning of “physician” as used in Art. 43>. limiting it to- a. practitioner of medicine as distinguished from all the other professions registered, certified or licensed and defined by law, we think that the use- of “physician” in connection with the name of a person implies- that he is engaged in the practice of medicine. Therefore,, if a. person- so using the word is- not in fact licensed to practice medicine, such use of the- word shows an intent, to- imply that he is engaged in the practice of medicine and by the- mere- use of the word in such circumstance he is unlawfully engaged in the practice of medicine as defined by Art. 43; § 119 (h). It necessarily follows that the use of the phrase “chiropractic physician” by a chiropractor who is not licensed to practice medicine is prohibited. We so hold. As the record here is devoid of any evidence that any of the appellants are licensed to practice medicine in Maryland, the order of 25 July 1974 enjoining them from the use of the word physician is affirmed.

Chiropractors point to one statute in which the term “chiropractic physician” is used. Acts 1967, ch. 160, codified as Art. 48A, Title, “Insurance”, § 489, reads: “For the purposes of health and accident, sickness and other insurance policies, a chiropractic physician, duly licensed to practice in the State of Maryland, shall be entitled to compensation for those services which he is licensed to perform under the provisions of Article 43 and which he has rendered to any insured.” We do not construe this one use of the term as establishing a legislative intent in the face of what we have discussed that chiropractors may properly so describe themselves. We observe that Art. 43 contains no provision for the licensing of a “chiropractic physician.” In any event, Acts 1970, ch. 736, repealing §§ 119 through 149D and enacting new §§ 119 through 136A in lieu thereof and renumbering certain other sections, provided in § 3 “That all laws or parts of laws, public general or public local, inconsistent with the provisions of this Act are hereby repealed to the extent of such inconsistency.”

Order of 25 July 19 7f affirmed; appellants to pay costs.

      . Henry A. Briele, John F. Schaefer, Russell S. Fisher, William A. Pillsbury, Karl F. Mech, Manning W. Alden, John M. Dennis, individually and as the Executive Committee of the Medical and Chirurgical Faculty of the State of Maryland.

      . R. W. Beverungen, Jr., Charles N. Cooper, Joseph I. Goldberg, Calvin P. Hornstein, Leon Klein, Jerome Powell, Thomas A. Pitts.

      . The order also assessed the costs against appellants.

      . By order issued Í7 March 1971, the court sustained with leave to amend a demurrer to a “Bill of Complaint for an Injunction” which instituted the action.

      . The Court distinguished O’Dell v. Barrett, 163 Md. 342, in which it was held that a chiropractor was qualified to testify as an expert as to the effect of an injury to the spine by pointing out that the Court did not “recognize” that chiropractors furnish “medical care”.

      . Osborne and Maurer each concerned restriction of the use of real property to residential purposes of “home occupation”. In Maurer the Court noted that “in the real estate aspect the positions of a chiropractor and a physician are analogous”, but not in the “professional aspect”. 199 Md. at 561.

      . We note that Code, Art. 43, § 119 (g) (5) prescribes that practice of medicine does not include “Massage by hand, or other manipulation by hand but by no other means.”

      . “The practice of chiropractic is defined as diagnosis, the location of the disaligned or displaced vertebrae of the human spinal column, the procedure preparatory to and the adjustment by hand of such misaligned or displaced vertebrae of the spinal column and skeletal articulations by any method not including [those things above set out....].” Code, Art. 43, § 504 (c).

      . For example, in subtitle, “Department of Health and Mental Hygiene”, “physician” is used in the context of a licensed practitioner of medicine in § 1 D as a qualification of the Commissioner of Health; in § 7 as a qualification for deputy State health officers; in § 11 concerning the duty of “physicians” to report diseases contracted as a result of a person’s employment; in § 12 concerning examination of physically handicapped children by a “qualified physician.” In subtitle, “Vital Records”, “physician” is defined in § 14 (a) (8) to mean “a person authorized or licensed to practice medicine in this State pursuant to the provisions of this article.” In subtitle, “Miscellaneous Provisions”, “physician” patently means a licensed practitioner of medicine wherever therein used — in § 31A concerning report of laboratory examination indicating venereal disease or tuberculosis; in § 31B about syphilis tests for pregnant women; in § 34 establishing minimum standards of examining laboratories and tissue banks; in § 38A — “Test of newborn child for phenylketonuria”; in § 38B concerning inflammation of eyes of newborn child; in § 42 dealing with medical care of the indigent; in § 51 providing that a local board of health may require “any qualified physician appointed by such board as county health officer” to be trained in sanitary science, public health and hygiene; in § 52 concerning the powers of any “physician” called to attend a person suffering a dangerous disease; in § 54F relating to the opinion of a “physician” that a person is dead. Subtitle, “Midwives”, concerns one attending upon any lying-in woman or woman in childbed who is not a legally qualified “physician”. Subtitle, “Abortion”, § 137 sets out the conditions under which a “physician licensed by the State of Maryland may terminate a human pregnancy .. ..” Subtitle, “Commissioners of Pharmacy”, speaks of “physician’s” prescriptions, § 249, and prescriptions issued by a “physician”, § 254A. Subtitle, “Registered Nurses and Practical Nurses”, refers to a licensed “physician”, § 291 (d). Subtitle, “Optometry’’, § 381 makes it unlawful for any person knowingly to sell to or prescribe glasses for persons with diseased eyes except it be with their knowledge and consent or on an order of or advice from a registered “physician”; § 383 makes it a misdemeanor for an optometrist to attach to his name or use the title, “M. D., surgeon, doctor, physician ...”, among other titles. Subtitle, “Hospitals and Related Institutions”, § 565C, in delineating the rights of health care patients, provides that “every patient can reasonably expect to obtain from his physician or the resident physician of the facility complete and current information concerning his diagnosis, treatment and prognosis. ...”; in establishing an Advisory Council on Hospital Construction in § 567, it is required that two of the four members appointed from a list submitted by the Hospital Council of Maryland, Inc. shall be “physicians”. Subtitle, “Chronic Hospitals and Infirmaries”, authorizes such institutions to conduct programs as will assist “physicians” to improve their knowledge and skills, § 598; § 599 provides that admission to a chronic hospital shall be made on the basis of a statement by a “physician”. Other sections in various subtitles of Art. 43 speak of “a qualified medical practitioner”, §§57 and 62; “a licensed practitioner of medicine”, §§84 and 98; “doctors of medicine”, § 489; “persons licensed to practice medicine”, § 606. These variations are all used as synonymous with “physicians”. In none of the subtitles could the word “physician” contemplate other than a person licensed to practice medicine.

      . Chiropractors say in their brief: “The Medical Practice Act has never governed the practice of chiropractic and the definitions contained therein including the term ‘physician’ are limited in applicability solely to that subtitle.” We observe that the first definition of “physician” in The American Heritage Dictionary of the English Language (1969) is “A person licensed to practice medicine; a medical doctor”. The first definition of “physician” in Webster’s Third International Dictionary is “a person skilled in the art of healing: one duly authorized to treat disease: a doctor of medicine — often distinguished from surgeon.”

      . Art. 43, § 119 (h) was added effective 1 July 1973 by Acts 1973, ch. 556. It reads:
      “ ‘Practice of medicine’ shall include:
      The use of the words or letters ‘Dr.,’ ‘Doctor,’ ‘M. D.’ or any other title in connection with a person’s name, with the intent thereby to imply that he or she is engaged in the practice of medicine or any of its branches.”
      The use of the word “Doctor” or its abbreviation does not necessarily imply the practice of medicine as does the use of the word “physician.” As the Attorney General pointed out in 24 Opinions of the Attorney General 172 (1939), the title “Doctor” has no definite relation to the practice of medicine but requires some further description to indicate the profession of the holder. See supra.