text:
    PAUL B. GANLEY et al. v. G and W LIMITED PARTNERSHIP et al.
    [No. 523,
    September Term, 1979.]

      Decided January 11, 1980.

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

      Clater W Smith, Jr., with whom was James H. Clapp on the brief, for appellants.

      Lawrence E. Finegan, with whom were Stern, Finegan & Winik, P.A. on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

This appeal from the judgment of the Circuit Court for Frederick County is before us for the second time. Appellants complain that although they won in that court, the amount recovered was insufficient. The suit was for a real estate commission and the issue to be decided was whether there was an agreement upon the amount of commission and, if so, what was that agreement.

At the trial on May 2, 1978, the Honorable Samuel W. Barrick held that the appellants failed to meet their burden of proof to show that there was an agreement to pay an 8% commission. The judge awarded a 4% commission to the appellants without adequate explanation for us to review for evidentiary sufficiency although appellants did appeal that decision to this Court on May 29,1978. By per curiam opinion filed on March 7, 1979, we remanded the case to the Circuit Court for Frederick County for the trial judge to “enter on the record a clear statement of his factual findings and the basis, in law, for the judgment entered.” The Honorable Samuel W. Barrick, by Memorandum dated March 28, 1979, found that while the appellants did not expressly agree to a 4% commission, they did in fact agree to that commission by Ganley’s silence when there had arisen a duty to speak. The appellants have taken this appeal from that decision.

Because the primary question asked on appeal is predicated upon factual findings, we will reproduce the court’s opinion in the pertinent part which contains significant findings of fact. Doing so serves the added purpose of setting the factual background in some perspective.

“MEMORANDUM

Paul B. Ganley (Ganley) and David W. Kornblatt Associates, Inc. plaintiffs, brought this suit against G & W Limited Partnership, Martin R. Grunley (Grunley) and William V. Walsh (Walsh), Defendants, in a two-count declaration. The first count alleges breach of contract, and the second count is based on quantum meruit, each count claiming compensatory damages in the amount of 10% commissions on a sale price of $217,800 ($21,780) plus punitive damages in the amount of $65,000. The court awarded damages to the Plaintiff in the amount of $8,712 (4% commissions) plus interest from date of settlement which was held on June 22, 1977, and costs of suit. The Plaintiffs appealed that decision, and the Court of Special Appeals has remanded the case without affirming or reversing with directions that the trial judge enter on the record a clear statement of his factual findings and the basis, in law, for the judgment entered.

Ganley and the defendants had several business transactions concerning the sale of real estate prior to this sale. In each of the previous cases the commissions had been negotiated. Ganley’s testimony as to commissions due in this sale is somewhat confusing. On page 14 of the record he was asked, 'When did you have a discussion with Mr. Grunley and Mr. Walsh with respect to commissions to be paid with regard to the sale of ten acres of property to Thomas Foods?’ He answered ‘— Mention of a commission had never come up until our meeting on April 14th when a price was agreed upon per acre’. At the bottom of page 21 and at page 22 Ganley indicated that he talked with Mr. Grunley or Mr. Walsh, or both of them, a week prior to the April 14th meeting concerning commission for the sale of the subject property, at which time he stated that he would accept 8% commission, but there was no response concerning that amount by either or both of them. When examined on cross-examination as to his recollection of telling Mr. Walsh at the meeting prior to April 14th of the 8% commission, he seemed somewhat unsure. There is, however, undisputed testimony that a listing agreement setting forth the commission was never signed by the Defendants or either of them. Furthermore, there was testimony by Walsh that the Commissions due Ganley on all transactions between the parties were negotiated after Ganley found a buyer in relation to the purchase price. The court made a finding of fact that this was their method of operation, commissions were negotiable.

The court further finds as a matter of fact that the parties Ganley, Walsh and Grunley did enter into a discussion at a meeting of April 14th and did agree in accordance with the testimony of Walsh and Grunley that the property should be sold at the reduced price of fifty cents per square foot and that Ganley should accept a commission of 4% because the owners were reducing the selling price. To support this finding, it would seem, as testified to, that it would be to the advantage of all parties to get the first sale on this property; and the fact that Thomas would put in certain improvements which would benefit all concerned.

The court further finds that although Ganley did not in words agree to the 4% commission, he did in fact agree to that commission by his silence. As a general rule, mere silence will not raise an estoppel. However, under the circumstances which require a silent party to speak so that the injured party may take steps to protect himself against loss which might otherwise result, the silent party will be estopped from asserting the defense which he would have had but for his silence. Laurel Race Course v. Regal Construction, 274 Md. 142, 156. Wilson on Contracts recognizes this principle. See Sec. 91. At the conference of Ganley, Walsh and Grunley during the meeting of April 24th, Ganley in effect accepted a 4% commission while Grunley and Walsh accepted a reduced selling price. Although Ganley did not accept the 4% commission in words, he did by his silence.”

The primary question asked by appellants is whether the trial court erred

“in finding that there had been an acceptance by silence of Appellees’ offer to accept a 4% real estate commission since there was no legally sufficient evidence to support this finding or to apply this principle of law.”

Because we find that the evidence was legally sufficient, we do not reach the alternate question asked.

Appellants concede that silence can serve as an acceptance when the circumstances impose a duty to speak. And well they might so concede since the Court of Appeals has said:

“As a general rule, mere silence will not raise an estoppel, Savonis v. Burke, 241 Md. 316, 320, 216 A. 2d 521 (1966); Mohr v. Universal C.I.T. Corp., 216 Md. 197, 205, 140 A. 2d 49 (1958). Where, however, the circumstances are such as to require a silent party to speak, so that an injured party may take steps to protect himself against a loss which might otherwise result, the silent party will be estopped from asserting the defense he would have had but for his silence, Mohr v. Universal C.I.T. Corp., supra; Union Trust Co. v. Soble, 192 Md. 427, 64 A. 2d 744 (1949); First Nat. Bank v. Wolfe, 140 Md. 479, 117 A. 898 (1922); see Furst v. Carrico, 167 Md. 465, 468, 175 A. 442 (1934).
This principle has been approved by the commentators and text writers. See, e.g., 1 Williston on Contracts, § 91 (3rd Edition 1957); 1 Corbin on Contracts, § 75 (1963); Restatement of Contracts 2d, § 72 (1973). These authorities recognize, as one of the limited exceptions to the general rule that silence does not operate as an acceptance of an offer, this proposition: Where the offeree with reasonable opportunity to reject offered services takes the benefit of them under circumstances which would indicate to a reasonable person that they were offered with the expectation of compensation, he assents to the terms proposed and thus accepts the offer.” Laurel Race Course v. Regal Constr., 274 Md. 142, 156 (1975).

The principle is as indicated one of equitable estoppel, the essence of which was synopsized by Judge Orth for the Court of Appeals in Impala Platinum v. Impala Sales, 283 Md. 296, 322-323 (1978):

“The Court has upheld and consistently applied the definition of equitable estoppel contained in 3 J. Pomeroy, Equity Jurisprudence § 804 at 189 (5th ed. 1941):
‘Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, of contract, or of remedy.’
See Dahl v. Brunswick Corp., 277 Md. 471, 487, 356 A.2d 221 (1976); Savonis v. Burke, 241 Md. 316, 319, 216 A.2d 521 (1966) and cases therein cited. ‘Estoppel is cognizable at common law either as a defense to a cause of action, or to avoid a defense....’ Bitting v. Home Ins. Co., 161 Md. 56, 60, 155 A. 329 (1931) and cases therein cited. There may be an estoppel to prevent a party from relying upon a right of property or contract, or of remedy both at law or in equity. Kline v. Lightman, 243 Md. 460, 474, 221 A. 2d 675 (1966). See Machovec v. Shipley, 171 Md. 339, 344, 189 A. 223 (1937). ‘Equitable estoppel operates as a technical rule of law to prevent a party from asserting his rights where it would be inequitable and unconscionable to assert those rights.... It is essential for the application of the doctrine of equitable estoppel that the party claiming the benefit of the estoppel must have been misled to his injury and changed his position for the worse, having believed and relied on the representations of the party sought to be estopped.’ Savonis, 241 Md. at 319-320 and cases therein cited. Mere silence will generally not raise an estoppel against a silent party. See Mohr v. Universal C.I.T. Corp., 216 Md. 197, 205, 140 A.2d 49 (1958) and cases therein cited. ‘[T]he doctrine is only applicable when there is a duty imposed upon the party remaining silent to speak....’ Mason v. Dulaney, 144 Md. 108, 114, 124 A. 390 (1923). Whether an estoppel exists is a question of fact to be determined in each case. Addressograph-Multigraph v. Zink, 273 Md. 277, 282, 329 A.2d 28 (1974); Bean v. Steuart Petroleum, 244 Md. 459, 469, 224 A.2d 295 (1966); Travelers v. Nationwide, 244 Md. 401, 414, 224 A.2d 285 (1966).”

Fleshing out the facts here from the record, we find that Ganley, a real estate broker, stood in a fiduciary capacity towards G & W Limited Partnership (G <fe W), his principal. This relationship required Ganley to act in good faith and to disclose to his principal all facts which were or may have been material to a transaction which would affect the principal’s interest and influence his conduct. Sellner v. Moore, 251 Md. 391 (1968). Ganley had contracted with G & W, appellees, to procure a buyer for a parcel of real property located in Frederick County. After unsuccessfully attempting to sell the property during a period of time in which three written contracts had expired, Ganley procured a prospective buyer for a part of the property. Prior to this Ganley had entered into a co-brokering agreement with appellant Kornblatt; however, G «fe W had no knowledge of the contents of this agreement, nor did they have a written agreement with either appellant at the time Ganley procured the buyer. Ganley had at one point before procuring a buyer submitted an agreement to G <& W, but that was not signed by appellees. The record indicates, as does the trial court’s opinion, that the parties had had a previous working relationship or “method of operation” whereby commissions were negotiated in relation to the purchase price after Ganley found a buyer. As stated in the opinion,

“[t]he court made a finding of fact that this was their method of operation, commissions were negotiable.”

Such was the understanding of appellees in the transaction under review. Mr. Grunley stated that he

“understood it as an open listing, with a commission to be determined in relation to price.”

Since their “method of operation” involved negotiation of commissions in relation to the buyer’s offer, it was reasonable for appellees to expect that procedure to continue in the absence of a written contract.

At a meeting with the prospective buyer, an offer was made to appellees for only a portion of the property. The offer per square foot was half of the asking price. Deliberations were considered at a caucus apart from the prospective buyer, and Ganley counseled acceptance. Mr. Walsh recalled that Ganley

“agreed that it would be a good idea to get a big tenant in the site and get a building started, to get Frederick County to install utilities, sewer and water, so they would be connected to the sewage plant and we could square off then.
Q I’m talking about this side meeting.
A This is when it happened, that’s when I’m talking about.”

He further recalled that:

“At the meeting we talked to him and said, ‘Look, we think it’s to the benefit of everybody to try to get something built on the property; we’re willing to cut ... what we’re trying to get for the property; you should cut your commission,’
Q And you stated that Mr. Grunley said [to Ganley], Tf you’ll accept four percent we’ll accept fifty cents per square foot,’ is that right?
A Yes, sir.”

Appellees became aware than Ganley was “co-brokering”, but they didn’t “know what kind of agreement they had”. Apparently, the only response to the offer to accept the sale upon conditions of a commensurately reduced commission by Ganley was a single comment followed by silence.

“He [Ganley] pulled out Kornblatt’s card and showed it to me [Grunley]. That was about the first time I knew there was a co-broker involved, and he said, T have a problem here.’
Q Did he say what the problem was?
A No.
Q Did he say anything else about the commission?
A Nothing. When we left the room I assumed that we had an agreement as to four percent, after caucusing.”

We can agree with the trial judge that appellees’ reliance on Ganley’s silence was not unreasonable. When Grunley and Walsh offered four percent as commission fees, a permissible inference arose that Ganley had a duty to reject affirmatively the offer if he wanted to further negotiate his commission, or if the proposal was not acceptable. Evidence indicates that he knew that the circumstances required appellees to act expeditiously and that their decision was conditioned upon his acceptance; that Ganley knew that the buyer’s half price offer was a take it or leave it proposal. These peculiar circumstances present at the time of the “caucus” interrupting the sale negotiations were such as to impose upon Ganley a duty to reject the offer affirmatively if it was unsatisfactory to avert his clients’ expressed intention to act upon the condition proposed. As indicated in Laurel, supra, the offeree with reasonable opportunity to reject the compromised condition may not silently watch his principal move to his detriment and later benefit from his silence.

In an early application of the doctrine, the Court of Appeals explained it thus:

“It has been very justly and forcibly observed that there is a negative fraud in imposing a false apprehension on another by silence where silence is treacherously oppressive. In equity, therefore, ‘Where a man has been silent when in conscience he ought to have spoken, he shall be debarred from speaking when conscience requires him to be silent.’ Harris v. Am. Bldg., &c., Ass., 122 Ala. 545. Silence is a species of conduct and constitutes an implied representation of the existence of the state of facts in question, and the estoppel is accordingly a species of estoppel by misrepresentation. 16 Cyc. 681, note 10. When the silence is of such a character and under such circumstances that it would become a fraud upon the other party to permit the party who has kept silent to deny what his silence has induced the other to believe and act upon it, it will operate as an estoppel. 16 Cyc., 756. Where a person with actual or constructive knowledge of the facts induces another by his words or conduct to believe that he acquiesces in or ratifies a transaction, or that he will offer no opposition thereto, and that other, in reliance on such belief, alters his position, such person is estopped from repudiating the transaction to the other’s prejudice. Id. 791, and cases in note 87. Even when the statute of fraud has been relied on, the equitable doctrine of estoppel has been enforced to prevent fraud. Goldman v. Brinton, 90 Md. 359.” Carmine v. Bowen, 104 Md. 198, 203-204 (1906).

The “treacherously oppressive” silence in that case arose when a landlord notified a farm tenant that his lease would not be renewed but ordered him to “sow grass seed” prior to the termination date. When the tenant declined, the landlord wrote saying:

“ T understand that you are making preparations for sowing your fall crop which will not mature until after the expiration of your lease of the farm. * * * I understand also that it is not your intention to sow any grass seed. I do not admit that in any event you will have the right to remove any crops after the expiration of your lease, and will stand on my rights in this matter, whatever they may be. But I particularly warn you, that I will hold you strictly to the consequences of your failure to sow grass seed, and if it should prove that the failure on your part to sow grass seed will defeat your right (if you otherwise have it, and which I do not admit, as I have above stated) to remove the outgrowing crops after the term, you will have yourself to blame for it.’ ” Id. at 200.

Several months later, after the lease had expired, the landlord again wrote to the tenant. The Court explained what transpired thus:

“In the latter part of May, nineteen hundred and four, the appellant sent another letter warning the appellee not to undertake to cut or take away any of the crops then on the farm ‘or which shall hereafter mature thereon.’ Prior to the date of this last letter the term of the appellee as tenant had expired and he had in obedience to the notice given him and pursuant to the stipulations of the lease, vacated the farm on March the first. The appellee sowed in the fall of nineteen hundred and three — that is, in the fall preceding the expiration of his tenancy on March the first, 1904 — about fifty acres of wheat and twenty acres of rye, which matured and ripened after the end of his term. It further appears from the bill, the answer and the testimony, and it is therefore undisputed, that after about six acres of wheat had been sowed in the fall of 1903 the appellant went to the field and inspected the work and inquired how much timothy was being sowed, and when told by the appellee that the quantity was a strong peck to the acre, expressed himself as satisfied. At the same time the appellee said to the appellant, T don’t anticipate any trouble in the cutting of my crop,’ to which the appellant made no reply.” Id. at 200.

Such was the “treacherously oppressive” silence which the Court of Appeals held sufficient in a court of equity to estop the landlord from claiming the crops growing upon his land despite the law being to the contrary at the time. While that case seems somewhat strained to reach its result, it clearly indicates the extent to which the silence principle of equitable estoppel will impose a duty to speak.

The evidence in this case was such that a factfinder could more readily conclude that Ganley knew that the sale was conditioned upon Ganley accepting a reduction in his commission; the sale was ultimately agreed to, and Ganley had a duty to reject the 4% commission fee so that G & W could further evaluate its position. The relationship of the parties, their previous dealings, and the exigent circumstances were such as to impose a duty to speak. See 17 C.J.S. Contracts § 41.

Judgment affirmed.

Costs to be paid by the appellants.

      . It is apparent that David W. Kornblatt Associates, Inc. (Kornblatt) had no agreement with appellees. Because his claim against them is a derivative one, it stands or falls with Ganley’s case.


source: Caselaw Access Project

author: Wilner, J.,

license: Public Domain

text:
    GARETT NICHOLAS GRIMES a/k/a Steven Capilango v. STATE OF MARYLAND
    [No. 557,
    September Term, 1979.]

      Decided January 11, 1980.

    The cause was submitted on briefs to Gilbert, C. J., and Moylan and Wilner, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Martha Weisheit, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Valerie A. Leonhart, Assistant Attorney General, Andrew L. Sonner, State's Attorney for Montgomery County, and Mark Binstock, Assistant State's Attorney for Montgomery County, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

While on patrol late in the evening of May 22, 1978, police officer John Becraft observed two young males exiting a barber shop in the Wildwood Manor Shopping Center. Suspecting that their business at that hour of the evening was non-tonsorial in nature, he directed them to halt; and, when they declined to do so, he pursued them onto the parking lot. The lads were too swift for Officer Becraft, who soon gave up the chase. He broadcast a “lookout” for the two and requested the assistance of the canine corps. He described the suspects as white males, 16-20 years of age, one dressed in blue jeans and a blue jean jacket, the other wearing dark, possibly dark green clothing.

About 10 minutes later, Officer Garner Smith arrived with a police dog. This noble beast tracked the suspects into a nearby residential area, but then lost the scent. The scent did not remain lost for very long, however. Mrs. Evelyn Jerome’s dog picked it up and started barking. This led Mrs. Jerome to look outside, observe a young man wearing a dungaree jacket standing by a tree just outside her window, and call the police. Officer Smith, and his dog, responded to the call. Mrs. Jerome directed them to her back yard, where the police dog located appellant hiding under some shrubbery.

Appellant came out willingly. Officer Smith asked his name, to which he responded “Steven Capilango.” This, it turns out, was not appellant’s name. A flashlight, screwdriver, and pair of wire grips were found in his hip pocket.

Officer Hosinski also responded to Mrs. Jerome’s call. He handcuffed appellant, escorted him to the police car, and began to advise him of his Miranda rights when appellant stated, “You can’t charge me with burglary... I was standing in the hallway just acting as a lookout. I didn’t go into the store.”

Appellant was charged with storehouse breaking with intent to commit a felony (Md. Ann. Code art. 27, § 32) and with the attempt to commit that crime. Following a ruling on his pretrial motion to suppress the various statements he made to the police, he was tried on these charges before a jury in the Circuit Court for Montgomery County. At the conclusion of the case, and over appellant’s objection, the court instructed the jury that the' charge of storehouse breaking with intent to commit a felony included within it, as a lesser included offense, the crime of storehouse breaking with intent to steal goods worth less than $100. Thus, the court said, although that lesser crime, a misdemeanor, was not specifically charged, the jury could convict of that if it found that appellant’s intent was to steal goods worth less than $100. The jury so found, appellant was so convicted, and we are asked to determine whether this was proper. We are also asked to determine whether appellant’s untruthful answer to Officer Smith’s request for his name was admissible.

We shall answer both questions in the affirmative.

(1) “Lesser Included Offense”

As noted, appellant was charged under art. 27, § 32, with “breaking a storehouse ... 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____” (Emphasis supplied.) This is a felony and subjected the perpetrator to 10 years in prison. Appellant’s conviction, however, pursuant to the court’s instructions, was not under § 32, but under § 342. That section made it a misdemeanor, subject to 18 months imprisonment, for a person to break into a storehouse “with intent to steal any money, goods or chattels under the value of one hundred dollars____" (Emphasis supplied.) His complaint is that he was convicted of a crime with which he was not charged. The State argues that this is permissible because, as the trial court concluded, the § 342 misdemeanor is a lesser included offense and is therefore subsumed in the § 32 felony.

The concept of inclusive and included offenses is one aspect or emanation of the more general doctrine of merger. As with the underlying doctrine, it becomes operative when a criminal defendant faces prosecution, reprosecution, or punishment for two or more separate offenses as the result of the same incident or conduct. The most common effect of a merger, mandated first by common law and then by application of the double jeopardy clause of the Fifth Amendment, is to preclude a multiple conviction and sentence. The lesser “included” offense merges into the greater “inclusive” offense, and judgment may be entered only upon the greater.

There is another, almost reverse, product of this doctrine, however, that proceeds with equal logic. The very element of inclusiveness — the theory that the greater offense necessarily incorporates within it the lesser offense — also means that a conviction of the greater presupposes a finding of guilt on the lesser included offense as well. In algebraic terms, if A is the sum of B and C, the establishment of A of necessity also establishes both B and C. This applies not only to a conviction, but also to a charge. An allegation of A is deemed to include an allegation of B and C, its constituent parts. Thus, upon that rationale, courts have rather consistently held that a charging document is effective to charge and, upon proper proof to permit conviction of, not only the particular offense specifically alleged but, in addition, all lesser offenses necessarily included within it, whether or not they are themselves separately stated. See in general 42 C.J.S. Indictments and Informations, §§ 271, 272. We concluded directly in Johnson v. State, 38 Md. App. 100, 109 (1977): “The clear weight of authority is that conviction of a necessarily included lesser offense is permissible under a document charging a greater offense....” Compare, however, Bennett v. State, 229 Md. 208, 217 (1962); Davis v. State, 39 Md. 355 (1874).

The theory underlying this secondary product of merger is not that it is permissible to convict a person of a crime that has not been charged, but rather that the greater charge includes the lesser. Thus, when a defendant stands trial on the greater, inclusive, charge, he in fact and in law stands trial at the same time on all of the lesser, included, charges as well. See Burnett v. State, 122 N.E.2d 468 (Ind. 1954).

The question initially before us, then, is whether the § 342 misdemeanor is a lesser offense included within the § 32 felony. It is not.

In Green v. State, 243 Md. 75, 80 (1966), the Court of Appeals commented that “[m]ost jurisdictions, including Maryland, have abolished the common law doctrine of merger and the true test under the modern concept of merger of offenses is whether one crime necessarily involves the other. ” (Emphasis supplied.) In applying that test to determine whether one offense is included within another, this Court has added an explanatory supplement. In Pinkett v. State, 30 Md. App. 458, 472 (1976), for example, we said: “The test under the modern doctrine of merger is whether one crime necessarily involves the other, that is, when the facts necessary to prove the lesser offense are essential ingredients in establishing the greater offense, the lesser offense is merged into the greater offense.” (Emphasis supplied.) See also Moore v. State, 23 Md. App. 540, 548 (1974), cert. den. 274 Md. 730 (1975); Stewart v. State, 4 Md. App. 565, 569 (1968). Compare Tender v. State, 2 Md. App. 692, 699 (1968), cert. den. 250 Md. 732 (1968), 393 U.S. 1096 (1969), merely reciting the test as stated in Green. Compare Washington v. United States, 366 A.2d 457, 461 (D.C. 1976): “A lesser offense must be such that the greater offense cannot be committed without also committing the lesser.”

In Wersten v. State, 232 Md. 164, 165 (1963), the Court of Appeals viewed the two offenses now before us as “complementary and mutually exclusive.” One requires an intent to steal goods worth $100 or more; the other requires an opposite intent, to steal goods worth less than $100. As the Court necessarily observed, a person cannot have both intents at the same time — that is what makes the offenses “mutually exclusive” — and thus a person cannot be convicted of both crimes as the result of the same storehouse breaking. See Wersten, 232 Md. at 166.

When we compare this exclusivity with the test used to determine inclusivity, it becomes immediately apparent that what the Court of Appeals has said is exclusive cannot at the same time be /«elusive. To prove the lesser offense, the State must prove an intent to steal less than $100; but once it does that, it has precluded a conviction under § 32. To that extent, the facts necessary to prove the lesser offense are not essential ingredients in establishing the greater offense but, as shown, actually prevent establishment of the greater offense.

This does not mean, however, that appellant’s conviction under § 342 was improper, or that the court’s instructions, though technically erroneous, were prejudicially so. There is a relationship between the two statutes, but it is not one of inclusiveness.

We traced the history of these two provisions in Prevatte v. State, 40 Md. App. 623 (1978). We there pointed out that the original storehouse breaking offense, as enacted by the General Assembly in 1809, made no distinction between an intent to commit grand or petit larceny. Both were then felonies, and what the statute prohibited was storehouse breaking with intent to commit a felony. Only when, in 1933, the Legislature made petit larceny a misdemeanor did it become necessary, in order to maintain the existing ambit of the storehouse breaking offense, to divide it into two sub-offenses — one where the intent was to commit a felony (including, of course, grand larceny) and the other where the intent was to commit only petit larceny, now a misdemeanor.

From this history, and from a simple analysis of the two statutes, it seems clear that they involve not different offenses but the same offense in different degrees. That is why a charge under § 32 carries with it a charge under § 342. It is precisely the same crime. Where the object of the intrusion is larceny, the offense, in either case, is storehouse breaking with intent to steal personal property. The distinction as to whether the intended larceny is grand or petit has meaning only as to whether the perpetrator is a felon or a misdemeanant and as to possible punishment.

Although occasionally stated, erroneously we think, in the context of inclusive and included offenses, the same result is uniformly reached in the analogous situation of charging grand larceny and convicting of petit larceny, crimes that are equally inconsistent. Such convictions of offenses not specifically charged are regularly sustained. See People v. Wilder, 198 P. 841 (Cal. App. 1921); Commander v. State, 178 So. 241 (Ala. 1938); Burnett v. State, 122 N.E.2d 468 (Ind. 1954); Corlew v. State, 180 S.W.2d 900 (Tenn. 1944); State v. King, 275 S.W.2d 310 (Mo. 1955); Morrow v. State, 185 So. 2d 200 (Fla.App. 1966); Scoggins v. State, 528 S.W.2d 641 (Ark. 1975); State v. Schrager, 442 P.2d 1004 (Wash. 1968); Cabbler v. Commonwealth, 184 S.E.2d 781 (Va. 1971); State v. Lawrence, 234 P.2d 600 (Utah 1951); Johnson v. State, 135 So. 592 (Ala. 1931); State v. Summers, 139 S.E.2d 627 (N.C. 1965). See also State v. Cooper, 124 S.E.2d 91 (N.C. 1962).

The court’s instructions in this case clearly advised the jury of the nature of the “two” offenses, the requisite elements of each, and the differences between them. For the reasons explained above, we find no error. Appellant was indeed charged with the crime of which he was convicted.

(2) Alias Steven Capilango

Appellant’s second contention is based upon Miranda v. Arizona, 384 U.S. 436 (1966). He claims that when Officer Smith asked his name, he was already in police custody, that the request therefore was in the nature of a custodial interrogation, that he had not yet been advised of his various Miranda rights, and that evidence of his reply was therefore inadmissible. We find no merit to this argument. See Clarke v. State, 3 Md. App. 447, cert. den. 251 Md. 748 (1968); Probst, May & May v. State, 5 Md. App. 36 (1968), cert. den. 252 Md. 731 (1969); State v. Landrum, 544 P.2d 664 (Ariz. 1976). Until the Court of Appeals directs us otherwise, we shall adhere to the view that routine questions seeking a person’s name and address are not proscribed by Miranda, and if the person answers such questions, his answers are not rendered inadmissible by the exclusionary rule announced in Miranda.

Judgment affirmed; appellant to pay the costs.

      . By Laws of Md., 1979, ch. 687, § 32 was amended (and § 342 was rewritten) to make $300, rather than $100, the dividing line between the felony and the misdemeanor. That change does not affect this case, however.

      . The Court of Appeals in Mills v. State, 278 Md. 262, 275 (1976), discussed at some length but then found it unnecessary to decide whether police questioning designed to elicit “routine information,” such as name and address is within the Miranda doctrine. It noted the disagreement, especially in the federal appellate courts, on this issue. See Farley v. United States, 381 F.2d 357 (5th Cir.), cert. den. 389 U.S. 942 (1967); United States v. La Monica, 472 F.2d 580 (9th Cir. 1972); United States Ex. Rel. Hines v. La Vallee, 521 F.2d 1109 (2d Cir. 1975), cert. den. 423 U.S. 1090 (1976); United States v. Prewitt, 553 F.2d 1082 (7th Cir.), cert. den. 434 U.S. 840 (1977) (all holding Miranda inapplicable to “routine” questions); contra, Proctor v. United States, 404 F.2d 819 (D.C. Cir. 1968); see also United States v. Grant, 549 F.2d 942 (4th Cir.), cert. den. 432 U.S. 908 (1977).


author: Mason, J.,

text:
    JAMES HARVEY MILLER v. STATE OF MARYLAND
    [No. 72,

    September Term, 1979.]

      Decided February 6, 1980.

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

      Thomas J. Saunders, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      F. Ford Loker, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Charles

      Zuckerman, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

On this appeal we are presented with two questions: First, whether the revocation of appellant’s probation for failing to pay a fine and court costs was a violation of the equal protection clause of the fourteenth amendment; and second, whether the trial court lacked jurisdiction to revoke appellant’s probation after the term of probation had expired. Because we answer the second question in the affirmative, we shall reverse the order of the lower court without reaching or deciding the first question.

James Harvey Miller, appellant, was convicted at a bench trial in the Criminal Court of Baltimore of breaking and entering and possession of narcotics paraphernalia. He was sentenced to two concurrent three year terms of imprisonment. The execution of the sentences was suspended and appellant was placed on probation for three years commencing November 21, 1974, subject, among other things, to the condition that he pay court costs of $74.00 and a fine of $500.00. After appellant’s term of probation had expired, it was revoked for non-payment of the assessed fine and court costs.

At the time appellant was placed on probation, he was employed as a merchant seaman and a payment plan was established wherein appellant was to pay $20.00 a month by mail. From the date probation was granted to the date probation was revoked, appellant had paid only $70.00 and his last payment was on May 28, 1976. According to appellant, he was “blackballed” by the Maritime Union for missing a ship in Philadelphia. Thereafter, he did not rejoin the union because he did not have the $80.00 reinstatement fee. Since January of 1975 he had worked only for two months, and during 1977 he was incarcerated for eight months for burglary.

The record reveals that appellant was placed on probation for three years commencing November 21, 1974 and ending November 21, 1977. A petition to revoke his probation was filed with the court and a warrant was issued on September 30, 1977. This warrant, however, was not signed by the issuing judge. For some inexplicable reason the warrant was not signed until January 30, 1978, four months after it was initially issued and more than two months after appellant’s probationary period had expired. After a hearing on September 26, 1978, appellant’s probation was revoked.

Appellant argues, and we agree, that the trial court lacked jurisdiction to revoke his probation after the probationary period had expired. On the other hand, the State argues that “since the cause for the violation arose within the probationary period, the court had jurisdiction to conduct a hearing.” While this precise question is one of first impression in this State, there is a niagara of authority on this point in other jurisdictions. The cases in these jurisdictions, however, have reached different results and fall into one of the following three general categories depending, in most instances, on the language and interpretation of their statutes.

In the first category the cases hold that probation may be revoked provided the proceedings are initiated within a reasonable time after expiration of the probationary period. See, e.g., United States v. Swanson, 454 F.2d 1263 (7th Cir. 1972); Commonwealth v. Sawicki, 339 N.E.2d 740 (Mass. 1975); Commonwealth v. Clark, 225 Pa. Super. 171, 310 A.2d 316 (1973); Decker v. State, 209 N.W.2d 879 (N.D. 1973).

Cases in the second category hold that probation may be revoked if the proceedings are instituted within the probationary period. See State v. Gibson, 156 N.J. Super. 516, 384 A.2d 178 (1978); Zillender v. State, 557 S.W.2d 515 (Tex. Cr. App. 1977); State v. O’Neal, 554 P.2d 910 (Or. 1976); McNeill v. State, 287 So. 2d 745 (Fla. App. 1974); People v. Williams, 294 N.E.2d 61 (Ill. App. 1973); People v. Clark, 272 N.E.2d 10 (Ill. 1971); State v. Hutto, 165 S.E.2d 72 (S.C. 1968).

Cases in the third category hold that probation may be revoked only when the proceedings are completed within the probationary period. See State v. Harris, 342 So. 2d 179 (La. 1977); People v. Smith, 12 Cal. App. 3d 621, 90 Cal. Rptr. 811 (1970); State ex rel. Phillips v. Wood, 165 S.E.2d 105 (W. Va. 1968); In re Griffin, 62 Cal. Rptr. 1, 431 P.2d 625 (1967).

Although involving a statute different from the one in the present case, Berry v. State, 41 Md. App. 563, 398 A.2d 59 (1979) is an instructive illustration of the third category of cases. There the defendant was convicted of non-support of his wife and two children in violation of the Maryland Code, Article 27, section 88 (1976 Repl. Yol., 1979 Cum. Supp.), and was sentenced to a term of eighteen months imprisonment. The sentence, however, was suspended and he was placed on probation for three years commencing on March 7, 1973, subject to the condition that he make support payments as directed by the court. On March 4, 1976, three days before expiration of the probationary period, a warrant was issued for the defendant’s arrest because of his failure to satisfy the support obligations in the order of probation. A revocation hearing was held on June 5, 1978, over two years after the expiration of the probationary period. Probation was revoked and the eighteen month sentence previously suspended was reimposed. On appeal this Court held that the trial court lacked jurisdiction to revoke probation after the expiration of the probationary period. Our holding was based solely on the language of the statute, which in part provides:

“If the court be satisfied by information and due proof under oath, at any time during the three years, that the defendant has violated the terms of the order, it may forthwith proceed to the trial of the defendant undér the original indictment, or sentence the defendant under the original conviction, as the case may be.” Article 27, § 88 (a), (b).

The State argued that the phrase, “at any time during the three years,” referred to the petition initiating process and that the probationary period was tolled when the arrest warrant was issued. In responding to this argument, we said:

“The statute involved here is not a civil limitations statute, but is in a sense jurisdictional in that it places a limit upon the time when the court may proceed against a defendant who has been placed on probation. That which must satisfy the court ‘during the three years’ is the presentation to it of ‘information and due proof,’ not the filing of an action... or the commencement of an action... to satisfy the court with ‘information and due proof’ clearly speaks to the trial itself, not to the petition of the probation department to revoke.
“A petition for revocation is certainly not ‘information and due proof’ and it is the latter only that, if presented to the court ‘during the three years,’ permits it to ‘proceed to trial... or sentence’ the appellant.” (Emphasis supplied). Id. at 567-68.

In the present case, unlike the statute in Berry, supra, the statutory authority for granting and revoking probation is Article 27, section 641A of the Maryland Code, which provides:

“Upon entering a judgment of conviction, the court having jurisdiction, may suspend the imposition or execution of sentence and place the defendant on probation upon such terms and conditions as the courts deem proper. The court may impose a sentence for a specified period and provide that a lesser period be served in confinement, suspend the remainder of the sentence and grant probation for a period longer than the sentence but not in excess of five years.
“Probation may be granted whether the offense is punishable by both fine and imprisonment or both. If the offense is punishable by both fine and imprisonment, the court may impose a fine and place the defendant on probation as to the imprisonment. Probation may be limited to one or more counts or indictments, but, in the absence of express limitation, shall extend to the entire sentence and judgment. The court may revoke or modify any condition of probation or may reduce the period of probation.” (Emphasis supplied).

Although the language of the statute does not answer the question presented because it does not speak specifically to the time within which the court must act to revoke probation, logic would seem to dictate that the court must act within the period fixed within the order of probation. To hold otherwise would mean that all terms of probation would extend for an indefinite period of time. In Laurie v. State, 29 Md. App. 609, 614, 349 A.2d 276 (1976) we said:

“We think it is implicit in the language of § 641A that maximum terms to be served as a probationer must be as definitely described as are terms of imprisonment upon sentencing. Although probationary restrictions may be lessened or discontinued before the. maximum is served, a defendant should not be left hanging as to the outside limits of his punishment,____” (Citation omitted).

The State contends that the issue raised by appellant involves the statute of limitations, i.e., the time within which an action must be brought, and does not involve the jurisdiction of the court. Thus, according to the State, appellant did not preserve the issue for appellate review because he failed to file a mandatory pretrial motion as required by Maryland Rule 736.

While the statute of limitations may be a “defense or objection” which must be raised by motion before trial under Maryland Rule. 736, and if not raised it is deemed waived, our concern here is not with the filing of an action or the commencement of prosecution for a crime within the statute of limitations, but with the subject matter jurisdiction of the court, viz the power of the court to hear and determine whether appellant had violated his probation. Consequently, since subject matter jurisdiction of the court may be raised at any stage of the proceedings, Maryland Rule 736 is inapplicable. See Tate and Hall v. State, 32 Md. App. 613, 363 A.2d 622 (1976).

The State also contends that the filing of the petition for revocation and the issuance of the unsigned warrant two months before expiration of the probationary period, tolled the running of the probationary period. While we rejected a similar argument by the State in Berry, supra, where the arrest warrant was issued prior to the expiration of the probationary period, our holding in that case was based on a different statute and is, therefore, not dispositive of the issue here. In this State only the court has authority to revoke probation or to issue a warrant for a violation of probation. McRoy v. State, 24 Md. App. 321, 330 A.2d 695 (1975). Although the special report in this case was filed within the probationary period, a valid warrant was not issued until the period had expired. Therefore, under these circumstances neither the filing of the special report which merely chronicled appellant’s alleged probation violation, nor the issuance of the defective arrest warrant which was tantamount to no warrant at all, tolled the running of the probationary period.

The Department of Parole and Probation has a duty to exercise due diligence in bringing alleged violations of probation to the attention of the court within the period fixed in the order of probation. Otherwise the court is without jurisdiction to act. Accordingly, under the circumstances of this case where the arrest warrant was issued and the revocation hearing was held after the term of probation had expired, we hold that the trial court lacked jurisdiction to revoke appellant’s probation. We, however, utter a word of caution. This opinion does not decide whether the issuance of a valid arrest warrant within the term of probation would stay the running of the probationary period and preserve the jurisdiction of the court.

Order reversed.

Costs are not reallocated as part of the judgment of this Court pursuant to Maryland Rule 1082f.

      . Certiorari was granted by the Court of Appeals on May 24, 1979.


author: MacD aniel, J.,

text:
    SAV-A-STOP SERVICES, INCORPORATED v. RICHARD ALAN LEONARD
    [No. 284,
    September Term, 1979.]

      Decided February 6, 1980.

    The cause was argued before Moylan, MacD aniel and Weant, JJ.

      M. King Hill, Jr., with whom were Jon H. Grube, James P. O’Sullivan and Smith, Somerville & Case on the brief, for appellant.

      Thomas Sisk, with whom were Elise Davis and Basin & Sisk on the brief, for appellee.
   MacD aniel, J.,

delivered the opinion of the Court.

This case presents the issue of whether, under the facts, an employer is liable for indemnification to an employee who has caused injuries to, and has subsequently been sued by, a co-employee.

Richard Alan Leonard, the appellee, was employed by the appellant Sav-A-Stop Services, Incorporated, which was engaged in the business of maintaining and servicing retail sales outlets. Leonard’s duties were to call on these sales outlets, and, as part of his employment, he was required to drive a truck furnished by Sav-A-Stop. In the course of his employment, Leonard occasionally transported fellow employees in the company truck.

On September 3, 1975, the truck driven by Leonard was involved in an accident in Anne Arundel County, Maryland. Leonard’s immediate supervisor, Carlton Rayhill Weikel, was a passenger in the truck, and he was killed as a result of injuries sustained. Both Leonard and Weikel were acting in the course of their employment for Sav-A-Stop at the time. Leonard and Weikel’s widow were both awarded compensation by the Maryland Workmen’s Compensation Commission, and the claims were paid under Sav-A-Stop’s workmen’s compensation insurance policy. Subsequently, Mrs. Weikel and her children brought a wrongful death action against Leonard in the Circuit Court for Anne Arundel County. They alleged that Leonard’s negligent driving caused Weikel’s death.

After the Weikels filed suit, Leonard filed this declaratory judgment action against Sav-A-Stop and others, seeking, in pertinent part, a declaration that Sav-A-Stop be required to defend Leonard in the wrongful death action and to pay any judgment entered against Leonard. The bases alleged by Leonard for Sav-A-Stop’s liability were equitable estoppel, negligence and negligent misrepresentation.

The liability insurance policies of Sav-A-Stop excluded indemnity coverage for any employee with respect to claims asserted against that employee by a co-employee for injuries sustained while both were engaged in the course of their employment. On June 19, 1978, the trial court granted summary judgment in favor of Sav-A-Stop’s insurance carriers, holding that the insurance policies excluded coverage for Leonard with respect to the present claim. The trial court refused to rule that the “co-employee exclusion” was a violation of public policy.

Trial against Sav-A-Stop proceeded on July 13, 1978. The evidence in the court below showed that at no time did Sav-A-Stop advise Leonard about the above automobile liability exclusions, nor did Leonard ever inquire as to the extent of the company liability insurance coverage. In response to questions on his employment application, Leonard had indicated that he owned a car and that he had automobile liability insurance. After he began working, Leonard sold his car and cancelled his insurance. He did not so inform Sav-A-Stop. Leonard testified that his supervisor had told him that he was allowed to take the truck home at night.

In its Memorandum and Order, dated December 6,1978, the trial court found that Sav-A-Stop was required to defend and indemnify Leonard on the grounds of equitable estoppel, negligence and negligent misrepresentation. With respect to equitable estoppel, the court said:

“... the Court finds that the silence of the employer who knew or should have known of the [automobile liability] exclusions, is an unconscionable omission sufficient to give rise to an estoppel. The Court finds this to be especially true in the situation where the employee has been placed in the position by the employer____ [T]he intent to permit him to be exposed to the danger can be inferred from the knowledge imputed to the employer of the exclusions and of Leonard’s practice of driving with fellow employees as passengers. Leonard testified that he would not have driven the vehicle but for the belief that he was covered by insurance, thus relying on the silence of the employer in not obtaining his own coverage.”

Later the court said,

“It is argued that his representation that he had automobile liability insurance excused the company from the obligation of advising him of the exclusion. However, neither the document itself nor the testimony suggests any efforts on the part of the employer to determine whether Leonard’s personal automobile liability policy even covered the use of a company vehicle in the course of employment.”

The trial court also found that Sav-A-Stop was negligent in failing to advise Leonard that claims of co-employees were excluded under its policy. Citing Bauman v. Woodfield, 244 Md. 207 (1965), the judge said:

“An employer has a duty to provide reasonably safe working conditions for his employees and to warn of dangers which are known to him and cannot be discovered by the employee in the exercise of reasonable diligence. Id. at p. 216. As noted above, the Court considers the risk to the employee’s financial well-being which accompanies driving with a passenger whose injuries would not be covered by insurance as a ‘danger.’ ”

In reviewing the facts, the judge added:

“Neither is there any indication on the [employment application] form to put the employee on notice that he was to rely on his own insurance policy rather than that purchased for the vehicle. Without such an indication, the Court can find no duty on the part of Leonard to report cancellation of the policy to his employer nor any failure to take reasonable precautions for his own safety in not so doing.”

The trial court also found that Sav-A-Stop was guilty of negligent misrepresentation because it “... impliedly represented that [the truck] was adequately insured for the purpose for which it would be used.”

On appeal, Sav-A-Stop contends that the appellee cannot recover under the theories of equitable estoppel, negligence or negligent misrepresentation because, it argues, no duty to the appellee on the part of Sav-A-Stop was breached. We agree.

We note, first, that the question of coverage under Sav-A-Stop’s liability insurance policies has not been raised on appeal and, therefore, is not in issue. In addition, the evidence introduced at trial is very neutral. All that it shows is that neither Sav-A-Stop nor Leonard did anything to insure automobile insurance coverage for claims against Leonard as a result of any injuries negligently caused by him to co-employees while acting within the scope of his employment. Neither Sav-A-Stop nor Leonard had, or attempted to obtain, specific knowledge about the existence or contents of the other’s insurance policy or policies. At issue in this case, then, is whether Sav-A-Stop is liable to Leonard simply for failing either to make certain that Leonard had provided his own insurance coverage for claims against him by co-employees or to warn Leonard that such a situation was not covered under the Sav-A-Stop insurance policies.

An action against Sav-A-Stop for negligence must be based upon the breach of an affirmative duty on the part of Sav-A-Stop to take some action with respect to the appellee, Leonard. In Bauman v. Woodfield, 244 Md. at 216, the Court of Appeals said:

“It is axiomatic that actionable negligence is the breach of a duty that is owed to another. If no duty is owed, then no action can be sustained even though an injury has occurred. Hettchen v. Chipman, 87 Md. 729, 41 Atl. 65.”

The Court of Appeals continued:

“In order that an act or omission may be regarded as negligent, the person accused of negligence must have known or should have known that danger was involved in such act or omission or that the instrumentality or property causing the injury was
in some way defective or dangerous. Adams v. Carey, 172 Md. 173,190 Atl. 815.” (Emphasis added.) 244 Md. at 216.

See also Texas Company v. Pecora, 208 Md. 281, 295 (1955).

Similarly, with respect to the tort of negligent misrepresentation, this Court said in Local 75 U. Furn. Workers v. Regiec, 19 Md. App. 406, 411 (1973), quoting from Holt v. Kolker, 189 Md. 636, 639 (1948):

“ ‘... there must be such a relation that one party has the right to rely for information upon the other, and the other giving the information owes a duty to give it with care.’ ” (Emphasis added.)

Even under the doctrine of equitable estoppel a duty on the part of the defendant must be shown. Thus, in Impala Platinum v. Impala Sales, 283 Md. 296, 323 (1978), the Court of Appeals said:

“Mere silence will generally not raise an estoppel against a silent party. See Mohr v. Universal C.I.T. Corp., 216 Md. 197, 205, 140 A.2d 49 (1958) and cases therein cited. ‘[T]he doctrine is only applicable when there is a duty imposed upon the party remaining silent to speak....’ Mason v. Dulaney, 144 Md. 108, 114, 124 A. 390 (1923).”

See also Bean v. Steuart Petroleum, 244 Md. 459, 465-67 (1966).

With respect to the various duties arising in an employer-employee situation, the Court of Appeals said in Bauman v. Woodfield, supra at 216:

“It is the general rule that the servant holds himself out as being capable of doing the work he undertakes to do, and that he assumes the risk incident to the employment. Hockaday v. Schloer, 125 Md. 677, 94 Atl. 526; Crown Cork Co. v. O’Leary, 108 Md. 463, 69 Atl. 1068; Buttner v. Steel Car Co., 101 Md. 168, 60 Atl. 597. However, it is the affirmative duty of an employer in a master-servant relationship to provide his employee with a reasonably safe place in which to work and to warn and instruct his employee concerning the dangers of the work known to him which are not obvious and can not be discovered by the exercise of reasonable care by the employee.”

The duty of an employer to an employee clearly does not extend to protecting the employee from all possible work-related dangers. As this Court, referring to the relationship between contractors or employers and their employees, said in Maryland Sales & Serv. Corp. v. Howell, 19 Md. App. 352, 357 (1973),

“Although he is not an insurer of their safety, he must exercise due care to provide for the protection and safety of those employees. Finkelstein v. Vulcan Rail Co., 224 Md. 439, 168 A.2d 393. This includes the duty to warn employees of any unreasonable risk which is either known to the subcontractor or that could have been discovered by reasonable inspection. There is no duty, however, to warn of dangers which are so apparent and obvious that an employee acting as a reasonable man could have discovered them. Le Vonas v. Acme Paper Board Co., 184 Md. 16, 40 A.2d 43.” (Emphasis added.)

In Le Vonas v. Acme Paper Board Co., supra at 20, the Court of Appeals also said:

“... an employee, in examining his surroundings, must use reasonable care to take notice of any obvious dangers; and, in performing his work, he must keep in mind the ordinary operation of familiar laws and govern himself accordingly. If he fails to do so, the risk is his own.” (Emphasis added.)

It is clear from the above cases that, absent special circumstances, there is no duty for an employer to warn an employee against that employee’s own negligence. Similarly, there is no duty to warn the employee that no insurance coverage is provided for his own negligence. The risk of one’s own negligence does not shift to others by the mere fact of having obtained employment. See 56 C.J.S., Master and Servant, § 183 and the cases cited therein.

We hold that to require an employer to advise an employee concerning the exclusion of company automobile liability insurance coverage for injuries negligently caused by that employee to another employee, even within the scope of employment, would be, in effect, to require the employer to foresee, and guard against, the employee’s negligence. This is clearly contrary to the above law, and we see no basis for the extension of any negligence theory, including negligence, negligent misrepresentation or equitable estoppel, to cover the situation where the employee negligence involved is in the operation of an automobile.

In addition, in the State of Maryland, the equitable estoppel doctrine can only be used as a defense to a cause of action or to avoid a defense, but not as the basis for an affirmative cause of action. See Impala Platinum v. Impala Sales, supra at 322-23; United States v. Maryland Casualty Co., 38 F. Supp. 479, 484 (D. Md. 1941). In the present case, the appellee attempted to use the doctrine as the basis for affirmative relief, and, therefore, for this additional reason, the trial judge erred in granting relief to the appellee based on the doctrine of equitable estoppel.

We hold, therefore, that the appellee was not entitled to be defended or indemnified by Sav-A-Stop with respect to the claim against him by the Weikel family.

Decree reversed.

Costs to be paid by appellee.

      . We note that nowhere in the Record Extract is there any indication that Leonard testified that he would not have driven the Sav-A-Stop truck but for the belief that he was covered by insurance with respect to injuries to co-employees.

      . In Bauman v. Woodfield, supra at 216, the Court of Appeals said: “The duty to warn or instruct depends upon the age, understanding, and experience of the employee and upon tne nature of the work. Where the employee, by reason of his youthfulness or inexperience, is unable to comprehend the dangers of the work or where the dangers are of such a nature as to give reasonable grounds for believing that they are not known to such employee or would not be discovered after a reasonable time, and they are actually or constructively known to the employer, the failure of the employer to warn the employee is a breach of his duty.”


author: Melvin, J.,

text:
    J & M CONSTRUCTION CO. et al. v. CARROLL E. BRAUN et al.
    [No. 293,
    September Term, 1979.]

      Decided February 6, 1980.

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

      Patrick G. Cullen, with whom were Lerch & Huesman on the brief, for appellants.

      John J. Szymanski, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee Subsequent Injury Fund. Thomas J. Michels, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Charles R. Goldsborough, Jr., Assistant Attorney General, on the brief, for appellee State Accident Fund.
   Melvin, J.,

delivered the opinion of the Court.

This workmen’s compensation case involves the liability of two successive employers and their respective insurance carriers as well as that of the Subsequent Injury Fund for the payment of vocational rehabilitation benefits awarded a claimant. There is no dispute that the claimant is entitled to the benefits. The question is who should pay for them. The facts giving rise to the controversy are virtually undisputed.

I

On May 12,1975, Carroll E. Braun, the claimant, sustained an accidental injury to his back while employed by the 3-B Demo Wrecking Company. As a consequence, the Workmen’s Compensation Commission determined, by its order of June 9, 1976, that the claimant had sustained a permanent partial disability amounting to 25% industrial loss of use of his body and ordered his employer’s insurer, the State Accident Fund, to pay him compensation therefor. On August 27, 1976, the claimant was injured in a second accident while employed by J & M Construction Company. He filed a workmen’s compensation claim against the J & M Construction Company and its insurer, Northwestern National Insurance Company (Northwestern). On October 21,1976, the Commission passed an order awarding the claimant temporary total disability payments for this second injury. The order provided that “[t]his Award is subject to further determination by this Commission as to whether the claimant has sustained any permanent disability.”

Thereafter, but before any determination by the Commission had been made as to any permanent disability resulting from the second accident, the claimant indicated to his second employer’s insurer, Northwestern, that he felt entitled to vocational rehabilitation benefits pursuant to Md. Ann. Code (1957, 1979 Repl. Vol.) Art. 101, § 36 (9). This section provides:

(a) “When as the result of an injury, an employee is disabled from performing work for which he was previously qualified, he shall be entitled to vocational rehabilitation as reasonably necessary to restore him to suitable employment. The employer and insurer shall pay the expenses of the vocational rehabilitation.
(c) During the period an employee is undergoing vocational rehabilitation training, he shall be entitled to compensation as if he were temporarily totally disabled.”

To resolve the issues of whether the claimant was entitled to vocational rehabilitation benefits and who was to pay for them, four issues were submitted to the Commission:

“(1) Was the Claimant, as the result of the accident of August 27, 1976, disabled from performing work for which he was previously qualified?
(2) If the answer to Issue #1 is in the affirmative, should the State Accident Fund pay all or a portion of the expenses of Vocational Rehabilitation?
(3) If the answer to Issue #1 is in the affirmative, should the Subsequent Injury Fund pay all or a portion of the expenses of Vocational Rehabilitation?
(4) If the answer to Issue #1 is in the affirmative, should Northwestern National Insurance Company pay all or a portion of the expenses of Vocational Rehabilitation?”

On May 16, 1978, the Commission held a hearing on these issues and by its order of July 11,1978, determined, as to the first issue, that “as a result of the accidental injury of August 27, 1976 [the second injury] the claimant was disabled from performing work for which he was previously qualified,” thus “entitling him to vocational rehabilitation.” Art. 101, § 36 (9). As to the other three issues, the Commission determined that the second employer’s insurer, Northwestern, "shall pay all of the expenses of Vocational Rehabilitation for the above named claimant [Carroll E. Braun],” and that neither the State Accident Fund (insurer of the claimant’s first employer) nor the Subsequent Injury Fund should pay any portion of the expenses. The order further provided that J & M Construction Company (the claimant’s second employer) and its insurer, Northwestern, pay to the claimant “compensation for Vocational Rehabilitation at the rate of $160.00 per week as if he were temporarily totally disabled, same to begin when Vocational Rehabilitation begins.” (Emphasis added).

J & M Construction Company and its insurer, Northwestern, appealed the Commission’s order of July 11, 1978 to the Superior Court of Baltimore City, contending that the Commission erred in its holding that neither the State Accident Fund (the insurer for the claimant’s employer at the time of his first injury) nor the Subsequent Injury Fund were responsible for any of the expense for the. claimant’s vocational rehabilitation. The appellants sought to have presented to a jury issues which would determine whether the claimant’s conceded disability to perform work for which he was previously qualified was due to his first injury on May 12, 1975, his second injury on August 27, 1976, or to the combined effect of both injuries.

On the scheduled trial date, both the Subsequent Injury Fund and the State Accident Fund filed oral motions for Summary Judgments, contending that on the relevant undisputed facts the Commission’s order should be affirmed as a matter of law. The court below granted the motions and judgment absolute was entered in favor of the appellees. It is from this judgment that J & M Construction Company and Northwestern have appealed to this Court.

II

We think the motions for summary judgment as to both the Subsequent Injury Fund and the State Accident Fund were properly granted.

The Subsequent Injury Fund

Payments from the Fund are regulated by Code (1957, 1979 Repl. Vol.), Art. 101 § 66 (l). As stated by the Court of Appeals in Anchor Motor v. Sub. Injury Fund, 278 Md. 320, 363 A.2d 505 (1976), this statute contains “three basic prerequisites to compensation, recently summarized for this Court by Judge Eldridge in Subsequent Injury Fund v. Thomas, supra, 275 Md. at 632, 342 A.2d at 674:

First, the employee must have a ‘permanent impairment due to a previous accident or disease or any congenital condition, which is or is likely to be a hindrance or obstacle to his employment.’ Second, the employee must incur ‘a subsequent disability by reason of a personal injury, for which compensation is required by’ the Workmen’s Compensation Act. Finally, the ‘previous impairment and subsequent accidental injury,’ when combined, must result in total disability or a permanent partial disability which exceeds 50% of the body and which is ‘substantially greater ... than that which would have resulted from the subsequent injury alone.” Id. at 325.

In the case before us, it is clear that at the time of its order of July 11,1978, the Commission had not determined, nor had it been requested to determine, the claimant’s ultimate disability following his second injury — much less that any “previous impairment” from his first injury, when combined with this second injury, resulted in “total disability or a permanent partial disability that exceeds 50% of the body and which is substantially greater... than that which would have resulted from the subsequent injury alone.” Id. at 325. Nor was there evidence presented to the Commission at its May 16, 1978 hearing that would have given it the opportunity to pass upon these questions. The appellants, nevertheless, seem to argue that in their appeal to the Superior Court of Baltimore City they were entitled to have a jury determine, in the first instance, that the prerequisites of Section 66 (1) were met. The argument is without merit. See Cabell Con. Blk. Co. v. Yarborough, 192 Md. 360, 64 A.2d 292 (1949), where the Court of Appeals said:

“As the Commission is the original factfinding body, an issue of fact must originate with the Commission, and cannot be raised for the first time before the Court on appeal, for in such a case the Court is authorized only to modify or reverse the decision of the Commission upon a finding that it has erred in construing the law or the facts. Bethlehem Steel Co. v. Mayo, 168 Md. 410, 416, 177 A. 910. However, the rule that no issue of fact can be submitted on appeal where the record does not show that the question involved was before the Commission does not mean that a formal issue, specifically directed to the question, must be presented first to the Commission, but means merely that there must have been at least evidence before the Commission which would give it the opportunity to pass upon the question. Jackson v. Bethlehem-Sparrows Point Shipyard, 189 Md. 583, 589, 56 A.2d 702, 705.” 192 Md. at 369.

From all of the above, it follows that in the posture of the case as it was presented to the Superior Court of Baltimore City the Subsequent Injury Fund could not be called upon to contribute to the claimant’s corhpensation and that summary judgment in its favor was properly granted.

The State Accident Fund

The pertinent statute here is codified in Md. Ann. Code (1957, 1979 Repl. Vol.), Art. 101, § 36 (7):

“(7) Apportionment of permanent disability due in part to preexisting disease or infirmity. — Whenever it shall appear that any permanent disability from which an employee is suffering following an accidental injury, is due in part to such injury, and in part to a preexisting disease or infirmity, the Commission shall determine the proportion of such disability which is reasonably attributable to the injury and the proportion thereof which is reasonably attributable to the preexisting disease or infirmity, and such employee shall be entitled to compensation for that proportion of his disability which is reasonably attributable solely to the accident and shall not be entitled to compensation for that proportion of his disability which is reasonably attributable to the preexisting disease or infirmity. This subsection shall not apply to temporary total and temporary partial disability. This subsection shall not apply where the combined effects resulting from a previous impairment, as defined in § 66 (1), and a subsequent accidental injury result in a permanent disability exceeding fifty per centum (50%) of the body as a whole.” (Emphasis added).

The appellants rely upon this statute to support their argument that the State Accident Fund (the insurer of the claimant’s employer at the time of his first injury) should contribute to the expense of vocational rehabilitation. Their reliance is misplaced. Section 36 (7) provides for apportionment of only permanent disability. As already noted, the Commission has not in the first instance determined, nor was evidence presented to it from which it could determine, the extent of permanent disability the claimant suffered following the second injury. Since there has been no permanency determination there is nothing to apportion.

Moreover, although Section 36 (7) limits the liability of a second injury employer and its insurer to compensation payable for an employee’s disability that is “reasonably attributable solely” to the second accident, there is nothing in that section that requires the first injury employer or its insurer to pay anything. In the circumstances, summary judgment was properly granted in favor of the State Accident Fund.

Judgments affirmed; costs to be paid by appellants.

      . The order also provided that “compensation for temporary total disability terminates on September 2, 1977.

      . As already noted, none of the parties dispute the Commission’s findings that after the second accident the claimant “was disabled from performing work for which he was previously qualified” and thus that he was “entitled to vocational rehabilitation reasonably necessary to restore him to suitable employment.” Art. 101, § 36 (9).

      . In pertinent part, the statute reads as follows:
      “Whenever an employee who has a permanent impairment due to previous accident or disease or any congenital condition, which is or is likely to be a hindrance or obstacle to his employment, incurs subsequent disability by reason of a personal injury, for which compensation is required by this article resulting in permanent partial or permanent total disability that is substantially greater by reason of the combined effects of the impairment and subsequent injury alone, the employer or his insurance carrier shall be liable only for the compensation payable under this article for such injury. However,' in addition to such compensation to which the employer or his insurance carrier is liable, and after the completion of payments therefor provided by this article, the employee shall be entitled to receive and shall be paid additional compensation from a special fund to be known as the ‘Subsequent Injury Fund,’ created for such purpose, in the manner described hereafter in this section, it being the intent of this section to make the total payments to which such employee shall become entitled equal to the compensation that would be due for the combined effects of the impairment and subsequent injury resulting in permanent total disability or a substantially greater permanent partial disability.

        Benefits from the Subsequent Injury Fund hereunder shall not be payable unless the combined effects resulting from a previous impairment and a subsequent accidental injury result in a permanent disability exceeding 50 per centum (50%) of the body as a whole; and that the previous impairment and subsequent accidental injury is each compensable, as determined by the Commission, for a period of not less than 125 weeks. However, the previous impairment shall be determined as of the date of the subsequent injury.”