author: Menchine, J.,

text:
    MARDO HOMES, INC. v. COMMISSIONER OF LABOR AND INDUSTRY
    [No. 558,
    September Term, 1976.]

      Decided March 11, 1977.

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

      Thomas N. Biddison, Jr., with whom were Gallagher, Evelius & Jones on the brief, for appellant.

      Walter Timothy Seidel, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

On October 16, 1975, three employees of Mardo Homes, Inc. (employer) were instructed to clean the leaves from rainspouts in one of its townhouse rental developments. The employer provided its employees with an aluminum extension ladder consisting of two fifteen foot sections, without a pulley leader, for use in the work. In the absence of a pulley leader, it was necessary to carry the ladder by hand to the scene of the work and make the section assemblage at that point. Upon assembly, the workmen placed it on the ground at a 90° angle facing the townhouses and after rotating the ladder, raised it to a vertical position, and moved it toward the roof of the building. In the course of that movement the extended metal ladder came in contact with uninsulated electric wires carrying 7600 volts. One employee was killed, and a second severely injured. The uninjured third employee had released his hold upon the ladder an instant before contact was made with the charged wires. The wires in question, consisting of three strands running parallel to the building, were approximately at rooftop level, approximately 16 feet from the ground, and separated from the building by about 15 feet.

On October 28, 1975, the assistant commissioner for occupational safety and health issued a citation to employer, alleging that it had violated the Maryland Occupational Safety and Health Act of 1973, codified as Maryland Code Article 89, §§ 28-49A (MOSHA). MOSHA is substantially similar to and interconnected with the Federal Ocupational Safety and Health Act (OSHA), 29 U.S.C. 651, et seq. as was clearly and succinctly pointed out in J. I. Hass Co. v. Dept. of Lic. and Reg., 275 Md. 321, 340 A. 2d 255 (1975), at 327-28 [259]:

“The Maryland Occupational Safety and Health Law, Art. 89, §§ 28-49B, was enacted as Chapter 59 of the Laws of 1973, effective July 1 of that year. It is substantially similar to the Federal Act. It vests in the Commissioner of Labor and Industry ‘the power and authority to administer and enforce the provisions of this subtitle and [the duty to] prescribe such rules and regulations as he may deem necessary to carry out his responsibilities under this subtitle.’ Art. 89, § 30. Essentially, it tracks the Federal Act in providing for the promulgation of occupational safety and health standards, and in fixing the duties of the employers and employees, and in establishing citation and enforcement procedures. Additionally, the State Act adopts the same civil penalties that are specified in the Federal Act. With particular reference to the standards, § 31 (c) of the State Act provides that: ‘. . . [T]he Board shall recommend or propose occupational safety and health standards which are or will be at least as effective in providing safe and healthful employment and places of employment as any standard promulgated under the federal Occupation Safety and Health Act of 1970....’
“Having met the applicable federal requirements, the State Act received the approval of the Secretary of Labor on July 5, 1973. 38 Fed. Reg. 17834. Thereafter, the Commissioner, acting on the recommendation of the Occupational Safety and Health Advisory Board created pursuant to § 31(a) of the State Act, adopted as standards under the state plan the general industry standards (29 C.F.R. § 1910) and the construction standards (29 C.F.R. § 1926) promulgated by the Secretary of Labor under the Federal Act.”

The citation charged that employer violated general industry standard 29 C.F.R. 1910.26(c)(3)(viii), incorporated into the State plan, and reading as follows:

“§ 1910.26 Portable Metal Ladders
(c) Care and Maintenance of ladders
(3) Use of ladders
(viii) Users are cautioned to take proper safety measures when metal ladders are used in areas containing electric circuits to prevent short circuits or electrical shock.”

The citation contained the following description of the alleged violation:

“Employer/Employees did not take proper safety measures when using a 30 ft. metal ladder near 7600 volt electric line at the following location:
a) 5000 block of Carmine Avenue, 3 employees exposed.”

and recommended that employer be declared in “serious violation” and be subjected to a penalty of $330.00.

On December 1, 1975, a hearing was had before a hearing examiner appointed by the Commissioner of Labor and Industry.

On March 16, 1976, the hearing officer made the following determination:

“1. That in Case No. J1370-009-76, the Citation for a violation of Maryland Occupational Safety and Health Standard 29 CFR 1910.26 (c) (3) (viii) issued against the ‘Employer’, Mardo Homes, Inc., is herewith affirmed.
2. That the violation of the Standard was a ‘Serious’ violation.
3. That the proposed penalty of $330.00 for violation of the foregoing standard is herewith affirmed.”

Employer requested a review by the Commissioner of Labor and Industry.

On March 30, 1976, the Commissioner, on the basis of a review of the record made before the hearing examiner, passed an order affirming the latter’s determination.

Employer, aggrieved by the order of the Commissioner, appealed to the Baltimore City Court. That court affirmed the order of the Commissioner.

Employer now has appealed to this Court asking:

“1. Was the providing of an aluminum ladder by Mardo Homes, Inc., to its employees, without a specific warning not to touch an unobstructed high tension wire, a violation of 29 CFR 1910.26 (ci (31 (viiii?”

We think the question posed by appellant too narrowly restricts the meaning and purpose of the cited standard and too narrowly limits the duty imposed upon employers by other provisions of MOSHA.

Article 89, § 32 reads as follows:

“Duties of employers and, employees.
(a) Each employer shall (1) furnish to each of his employees employment and a place of employment which are saje and healthful as well as free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees, and (2) comply with the rules, regulations, standards and orders promulgated under this subtitle.
(b) Each employee shall comply with the provisions of this subtitle and all rules, regulations, standards and orders issued pursuant to the authority of this subtitle which are applicable to his own actions and conduct in the course of his employment.
(c) Each employer shall, through posting of notices at the place or places where notices to employees are normally posted or other appropriate means keep his employees informed of their protections and obligations under this subtitle, including provisions of applicable standards.” (Emphasis'added.)

Additional Evidence

The descriptive facts of the incident causing death and injury hereinbefore recited are not in dispute. In addition to those facts, other significant evidence before the hearing examiner bore upon the issue whether the employer breached a statutory duty. In summary, there was testimony that the workmen did not know that uninsulated electrically charged wires existed at the point where the unfortunate accident occurred but were “totally unaware of the three electric wires running the full length of the houses because they were hidden by autumn leaves”; that employer’s general manager, although declaring that he “informed the men that cleaning should be done in the rear of the building away from the line,” acknowledged that there were “[no] specific instructions given to avoid these particular wires” or to indicate the fact of their existence at the point where the work was to be undertaken.

Such a limited warning, directed as it was to a part of the building complex other than the accident site, reasonably implied that the area wherein the workmen were assigned to work was free of hazards incident to the use of a metal ladder. The tragic event proved otherwise.

The lines in question had been installed at the sixteen foot level in this development when the buildings were constructed and “[In m]ost of [employer’s] apartment developments the lines are usually thirty feet above the ground and nothing as low as I found this wire to be.”

The hearing examiner reached the following conclusions from the evidence presented before him:

“The employees engaged in raising the ladder included the Assistant Supervisor of the development and the Superintendent of Maintenance, both of whom, are by their positions, the ‘Employer’s’ representatives; and their activities and knowledge within the scope of their employment are the activities and knowledge of the ‘Employer.’
“In examining the actions and knowledge of the ‘Employer’, we find that he knew, or should have known, that there were wires near the building and also that he knew, or should have known, that a metal ladder coming into contact with the wire could cause an electrical charge to be drawn down the ladder to the ground.
“The ‘Employer’ provided his employees with an aluminum ladder without a pulley and rope for extending it to a raised position, thus making it necessary to extend the ladder before raising it.
“While the wires may have been partially obstructed by foliage, the pictures taken by the Inspector at the location where the accident is alleged to have happened, clearly shows the wires without any type of foliage hiding them.
“From the evidence in this case, it is clear that the ‘Employer’ violated the standard as cited.”

Judge Levine, speaking for the Court of Appeals in Hass, supra, pointed out that: “Since the Maryland Act is patterned on the Federal Act... we look to the federal cases for guidance.” 275 Md. at 330, 340 A. 2d 260. We shall do likewise.

The nature of the general duty imposed upon employers under OSHA was briefly but cogently stated in Brennan v. Butler Lime and Cement Company, 520 F. 2d 1011 (7th Ci 1975), wherein it was said at 1017:

“An employer must take reasonable precautionary steps to protect its employees from reasonably foreseeable recognized dangers that are causing or are likely to cause death or serious physical injury. And precautionary steps, of course, include the employer’s providing an adequate safety and training program. See the ‘general duty’ clause, 29 U.S.C. § 654 (a)(1).” (Maryland Counterpart Art. 89, § 32(a).)

The suggestion of appellant that a MOSHA violation depends upon consideration whether the injured or deceased workman was guilty of contributory negligence as a matter of law was rejected in Federal OSHA cases. In REA Express, Inc. v. Brennan, 495 F. 2d 822 (2d Cir. 1974), it was said at 825:

“In view of the clear purpose of the statute to set new standards of industrial safety, we cannot accept the proposition that common law defenses such as assumption of the risk or contributory negligence will exculpate the employer who is charged with violating the Act.”

See also Clarkson Const. Co. v. Occ. Saf. & Health Review, 531 F. 2d 451, 457 (10th Cir. 1976). We reject the suggestion in MOSHA cases.

Appellant relies heavily on Hass, supra. We find its reliance misplaced. In Hass, supra, Judge Levine after referring to many Federal cases before the Review Commission and many on appeal in Federal Circuit Courts of Appeal, stated:

“The common thread running through the cases, therefore, is that the employer cannot be charged with being an insurer, or be held accountable to a standard of strict liability. As we have indicated, acceptance of the argument advanced by appellee would have the effect of imposing such a standard in this case. Here, the employer undertook all reasonable means to compel its employees to wear their properly attached safety belts. The evidence further shows that two of them were fired for failing to observe this procedure. In short, the Commissioner has failed to indicate ‘that demonstrably feasible measures would have materially reduced the likelihood that such misconduct would have occurred.’ For these reasons, the determination respecting standard (11(81 and the $9,000 penalty assessed against appellant must be reversed.” 275 Md. at 333-34, 340 A. 2d 262.

Unlike Hass, the employer in the subject case did nothing to assure that the metal ladder would not be “used in areas containing electric circuits to prevent short circuits or electrical shock.” Standard 1910.26(cl(31(viiil.

The distinction was considered and discussed in Ames Crane and Rental Service v. Dunlop, 532 F. 2d 123 (8th Cir. 1976), wherein it was said at 124-25:

“One of the OSHRC Commissioners dissented on the ground that Ames lacked ‘actual or constructive knowledge of the alleged violation,’ citing Brennan v. OSHRC and Raymond Hendrix, d/b/a Alsea Lumber Co., 511 F. 2d 1139 (9th Cir. 1975). There, the Ninth Circuit stated:
We fail to see wherein charging an employer with a . . . violation because of an individual, single act of an employee, of which the employer had no knowledge and which was contrary to the employer’s instructions, contributes to the achievement of the cooperation sought by the Congress.
511 F.2d at 1145 (emphasis added.)
“In the instant case we need not decide whether Ames could be charged with a serious violation if its operator had disregarded clear and adequate safety instructions, because no such instructions were given here. Ames never instructed its crane operators to maintain any specified distance from live power lines. It merely ‘made available’ several hundred pages of written material which the operators were free to read if they chose to do so. Such conduct does not fulfill the duty of an employer to take adequate precautionary steps to instruct and train employees to protect against reasonably foreseeable dangers.”

We have found two decisions by the Occupational Safety and Health Review Commission involving citations stemming from injury or death incidental to the use of aluminum ladders in the vicinity of energized power lines.

In Secretary v. Bratcher Company, OSAHRC Docket No. 83, March 1, 1973, 2 OSAHRC 725, a divided three man commission reversed the holding of the hearing judge that employer had violated OSHA provisions requiring employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

Commissioner Moran was the author of the majority opinion that stated, inter alia:

“After a close examination of the evidence on the location of the wires in relation to the building to be painted, the Commission concludes that there was only a remote possibility that respondent’s furnishing of either type ladder, or the employees’ use of the same, in this specific situation would cause death or serious physical harm.
“This was an unforeseen occurrence and the respondent could not reasonably anticipate that his employees would use the aluminum ladder, or any other ladder which was on his van and available for their use, in any way that it might come in contact with, or in close proximity to, the electrical line.
“The evidence is not sufficient to sustain a finding that the facts present in this case constituted a violation of section 5(a)(1).
“The Judge’s decision and order is set aside. Respondent did not violate the Act as charged.” 2 OSAHRCat727.

Commissioner VanNamee, dissenting, declared, inter alia:

“ . . . there was a very real possibility that the furnishing and use of a metal ladder could produce death or serious physical harm. Mechanical devices such as extension mechanisms for extension ladders do stick and do require employees to extend ladders on the ground as was the case here. This condition may reasonably be anticipated by an employer. Similarly, it is more reasonable to anticipate that the employees will raise the fully extended ladder in these circumstances rather than to expect them to shorten the ladder (once extended), then raise it, and then extend it. Finally, when employees are given a free choice (as in this case) to select between wood and metal ladders it is as reasonable to expect them to select the metal as the wood. Indeed, it may be expected that they will select an aluminum ladder over an equivalent wood ladder since the former is lighter in weight.
“On consideration of the facts in this case I must conclude that a reasonably prudent employer would have anticipated the recognized hazard involved and taken steps to eliminate it.” 2 OSAHRC at 731.

In the course of his opinion, the hearing judge in Bratcher had concluded, inter alia:

“Respondent violated Section 5(a)(1) of the Act by furnishing employees with aluminum ladders on or about August 17, 1971, for use where they might come in contact with electric circuits and, thus, failed to furnish employees with employment and a place of employment free from recognized hazards that could cause or likely cause death or serious physical harm to employees.” 2 OSAHRC at 744.

In Secretary v. Robbins, OSAHRC Docket No. 789, December 14, 1973, 5 OSAHRC 719, a new Commissioner (Cleary) was the author of the majority opinion affirming the holding of the hearing judge finding a violation under circumstances quite similar to Bratcher. Commissioner Cleary’s opinion stated, inter alia:

“In our opinion the Judge properly raised the penalty proposed by the Secretary of Labor from $750 to $900, giving heavy weight to the gravity of the violation — use of an aluminum ladder close to an energized power line and making no effort to eliminate the electrical hazard.” (Emphasis added.) 5 OSAHRC at 719.

The hearing judge’s opinion in Robbins, supra, had declared, inter alia:

“The evidence supports a finding that respondent’s employees performed work in close proximity to high voltage lines which were not denergized [sic], that respondent, through the acts of his on-the-spot supervisory personnel knew the hazard and that he failed to take all necessary measures to insure the safety of the employees.” 5 OSAHRC at 725.

The reasoning of the dissenting opinion in Bratcher, supra, is persuasive. Moreover, the later decision in Robbins, supra, appears to commit the Federal Commission to the views expressed in that dissent.

Article 89, § 38 provides that on judicial review the findings of the commissioner with respect to questions of fact, when supported by substantial evidence, shall be conclusive.

We have carefully examined the subject record and conclude that it contains substantial evidence to sustain the finding that this employer violated standard 1910.26(c)(3)(viiil and that an appropriate penalty was imposed.

Judgment affirmed.

Costs to be paid by appellant.

      . Authorized by Article 89, § 36.

      . Acting pursuant to Article 89, § 37(a).

      . Authorized by Article 89, § 37 (d).

      . Authorized by Article 89, § 37 (d).

      . Authorized by Article 89, § 37 (e).

      . Authorized by Article 89, § 38 (at

      . See declaration of legislative intent and purpose incorporated within MOSHA by § 28 of that Act.

      . A reference to another electrically charged line in a different part of the complex.

      . Authorized by 29 U.S.C. § 659 (c).

      . Article 89, § 32 (a), the Maryland counterpart of the Federal Statute, in pertinent part reads as follows:
      “(a) Each employer shall (1) furnish to each of his employees employment and a place of employment which are safe and healthful as well as free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

      . The other commissioners in Robbins were Moran and VanNamee, the authors, respectively, of the majority and minority opinions in Bratcher, supra. In Robbins, Moran was the dissenting commissioner. His dissent, curiously enough, did not encompass the substantive finding that the employer had violated an OSHA standard, but was limited to an expression of his view that the hearing judge had been without legal authority to increase the penalty that had been administratively imposed.


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    STUART F. KELLY v. EXXON CORPORATION
    [No. 586,
    September Term, 1976.]

      Decided March 14, 1977.

      The cause was argued before Morton, Melvin and Liss, JJ.

      W. Lee Harrison, with whom were William E. Seekford and Daniel T. Doherty, Jr., on the brief, for appellant, cross-appellee.

      Dormid E. Sharpe and Jeffrey D. Herschman, with whom were Piper & Marbury on the brief, for appellee, cross-appellant.
   Liss, J.,

delivered the opinion of the Court.

This complex and convoluted case reaches us on appeal and cross-appeal from judgments on verdicts returned by a jury in the Circuit Court for Baltimore County (MacDaniel, J., presiding) in favor oí Stuart F. Kelly (“Kelly”), appellant/cross-appellee, against Exxon Corporation (“Exxon”), appellee/cross-appellant. The jury found that Kelly was entitled to the sum of one thousand dollars ($1,000) as compensatory damages and forty thousand dollars ($40,000) as punitive damages for the alleged malicious prosecution of Kelly by Exxon.

The controversy had its genesis in August, 1973, when William J. Clinton, security agent for Exxon, communicated with a Corporal Claude O. Keen of the Maryland State Police and requested his cooperation in an investigation of the disappearance of company products from Exxon’s Dundalk terminal. The plan agreed upon and carried out on September 26, 1973, was that the assistant terminal superintendent, Brady 'Moore, and the garage superintendent, Edward Anderson, equipped with binoculars, would position themselves on two partially constructed parallel bridges (about 250 feet from the garage) from which they would conduct a surveillance of the night shift garage mechanics.

Kelly, one of the two mechanics working, spent several hours repairing a tank truck radiator, and at some point during the evening, he removed several five gallon oil cans from the trunk of his car and was seen carrying them through the garage. The testimony is conflicting as to what occurred from that point on. Kelly said that the cans contained “junk” material which he dumped into the garage trash dumpster; the private use of the dumpster by the mechanics was permitted by the company. Moore testified that Kelly took the five gallon cans from the trunk of his automobile and proceeded to the manifold lines of a tank truck from which he filled the cans; that he saw Kelly place the cans on the ground near the garage and back his personal car up to the garage; that he further saw Kelly make motions “that any reasonable person would take to be lifting motions; however [Kelly’s] body was between me and the car and I could not physically see those cans go into his car”; and that so far as Moore knew, neither he nor any other Exxon employee had actually seen Kelly carry any gasoline from the Dundalk facility on that night or on any other night. Anderson testified that he saw Kelly back his car up to the garage and heard the manifold valve slam off, but because of obstructions to his view, he did not see Kelly drain any gasoline out of the manifold line of any of the tank trucks or put anything into the trunk of his car.

Kelly stated that he may have drained the manifold line of one of the trucks that evening but that this was not unusual because as a safety measure, it was often considered necessary to drain gasoline from the manifolds. This “slop gas” (contaminated gasoline), he said, was either thrown away or with the company’s knowledge used by employees to wash their jackets, gloves or other clothing. He denied placing the cans in the trunk of his car and denied removing any gasoline from the Exxon terminal.

On October 8,1973, Kelly was called into Anderson’s office where a number of Exxon’s management personnel were present; they advised him of the surveillance of his activities on the night of September 26th and that he was suspected of stealing company gasoline. Kelly denied the charge and returned to his work; he was advised later that afternoon that the company had decided to suspend him pending further investigation.

A week later, Kelly was informed that he was being terminated for “violation of a posted offense or offenses” relating to the commission of a crime on company time or property and stealing from the company (or from others) on company time or property. On October 24th, Corporal Keen called Kelly and advised him that he was going to have to arrest him; they arranged to meet the following afternoon at police headquarters; and Moore in the interim had that morning executed an affidavit for a summons/arrest warrant alleging that Kelly had taken 15 gallons of gasoline from Exxon’s Dundalk garage terminal. Kelly was arrested, processed, placed in the lock-up, and later released on his personal recognizance. The case was called for trial before a jury on December 18, 1973, in the Criminal Court of Baltimore, but after the selection of the first four prospective jurors, the State advised the court that it would enter a nolle prosequi in the case.

On September 27, 1974, Kelly filed a Declaration in the Circuit Court for Baltimore County against Exxon, Clinton and Moore, individually and as servants and employees of Exxon. The Declaration in a number of counts charged the defendants with malicious prosecution, slander, and false imprisonment arising out of the alleged theft of Exxon’s gasoline. Subsequently, an Amended Declaration was filed against the same defendants alleging malicious prosecution and slander.

On April 26, 1976, a jury was impaneled and the case proceeded to trial. At the close of Kelly’s case-in-chief, the court granted a motion for a directed verdict as to the slander count, removing Clinton as a defendant; Kelly was granted a motion to dismiss his claim as to Moore; and the case proceeded against Exxon only as to the issue of malicious prosecution. We have heretofore specified the verdicts returned against Exxon, which subsequently filed and was denied a motion for judgment notwithstanding the verdict or in the alternative a new trial. This, then, was the posture of the case antecedent to the appeals and cross-appeals now before us.

There are a number of interesting and involved questions raised by the parties, and we shall consider them in the order which we believe will provide the most comprehensive disposition of them.

I

Cross-appellant, Exxon, raises three issues basic to the determination of the case, and we shall consider these issues first.

1) Was there legally sufficient evidence from which the jury could conclude that there was an absence of probable cause for the institution of the criminal proceeding?

Traditionally, malicious prosecution suits are disfavored by the law. Siegman v. Equitable Trust Co., 267 Md. 309, 297 A. 2d 758 (1972); North Point Construction Co. v. Sagner, 185 Md. 200, 44 A. 2d 441 (1945). The reason given by the courts for this disfavor is that criminal prosecutions are essential for the maintenance of social peace and should not be discouraged by the threat of subsequent civil proceedings. Stansbury v. Luttrell, 152 Md. 553, 137 A. 339 (1927).

Maryland, however, does recognize actions for malicious prosecution, and in Gladding Chevrolet, Inc. v. Fowler, 264 Md. 499, 505, 287 A. 2d 280 (1972), the Court stated the elements of such an action:

“To prevail in a suit for malicious prosecution the plaintiff must show: (1) that the criminal proceeding instituted or abetted by the defendant has terminated in his favor, apart from whether any inference as to probable cause for the proceeding arises from the termination; (2) a want of probable cause for the proceeding which may, or may not, be inferred from the termination of the proceeding, depending upon the manner of the termination; (3) malice, which is a primary purpose for the institution of the proceeding, other than that of bringing an offender to justice.”

Brewer v. Mele, 267 Md. 437, 298 A. 2d 156 (1972); Banks v. Montgomery Ward & Co, Inc., 212 Md. 31, 128 A. 2d 600 (1957); and Shipp v. Autoville Ltd., 23 Md. App. 555, 328 A. 2d 349 (1974).

The initial question to be determined here is whether Kelly produced sufficient evidence of lack of probable cause to entitle him to have the issue put before the jury? Exxon answers in the negative and urges, therefore, that the trial court erred in denying its motion for a directed verdict. Our appellate courts have consistently held that where the facts and inferences reasonably deducible therefrom are clear and undisputed, then the question of probable cause is one of law. Durante v. Braun, 263 Md. 685, 284 A. 2d 241 (1971); Kennedy v. Crouch, 191 Md. 580, 62 A. 2d 582 (1948); Kimbrough v. Giant Food, Inc., 26 Md. App. 640, 339 A. 2d 688 (1975).

When considering a motion for a directed verdict submitted on the ground that there is no evidence legally sufficient to show lack of probable cause, we must apply the fundamental rule that the evidence and inferences fairly deducible therefrom must be viewed in a light most favorable to the party against whom the motion is directed. Levine v. Rendler, 272 Md. 1, 320 A. 2d 258 (1974); Derby v. Jenkins, 32 Md. App. 386, 363 A. 2d 967 (1975); Picone v. Talbott, 29 Md. App. 536, 349 A. 2d 615 (1975).

In Tully v. Dasher, 250 Md. 424, 440, 244 A. 2d 207, 217 (1968), the Court of Appeals explicated the test to be applied under these circumstances:

“It is well established that when a defendant moves for a directed verdict in his favor he must, for the consideration of the motion, concede the truth of all facts that tend to support the right of the plaintiff to recover as well as all inferences which might naturally and reasonably be deduced from those facts, even though these facts may be contradicted. If there is any legally relevant and competent evidence from which a rational mind could infer a fact in issue, the trial court should not invade the province of the jury by directing a verdict for the defendant.” (Citations omitted).

We have carefully reviewed the record and find substantial disagreement between the appellant and appellee as to what occurred on the night of September 26, 1973. There are discrepancies even in the testimony of Exxon’s witnesses as to what they observed that night. Kelly’s version of the events of that evening are consistent with his complete innocence of the charge made against him; the versions of Moore and Anderson may at best be characterized as giving rise to a suspicion that Kelly was stealing gasoline but are not enough to amount to probable cause as a matter of law. The witnesses disagree as to what occurred in the office conference on October 8 — Kelly places a different interpretation on his alleged admissions than does Exxon. In .his testimony, Kelly categorically denied ever stealing any gasoline during his 17 years as an employee of Exxon, flatly denied stealing any gasoline on September 26, and positively denied ever admitting to anyone that he stole gasoline. It would serve no useful purpose to detail the innumerable contradictions in the testimony of Kelly, Moore, Clinton, and Anderson, but these contradictions, we believe, are sufficient to have raised a substantial issue of material fact justifying the submission of the issue of probable cause to the jury.

2) Did the plaintiff produce sufficient evidence to justify the submission of the issue of malice to the jury"!

It is axiomatic that malice is an essential element of a malicious prosecution action. The issue of malice in such an action is not, however, confined to a mere determination of whether one party acted out of ill-will, spite, hatred, or reckless conduct but rests upon a determination as to whether a party acted “with any motive other than that of bringing an offender to justice.” Gladding Chevrolet, Inc. v. Fowler, supra; Durante v. Braun, supra; Safeway Stores, Inc. v. Barrack, 210 Md. 168, 122 A. 2d 457 (1956); Johns v. Marsh, 52 Md. 323 (1879).

Exxon argues that Kelly presented evidence which negated any showing of malice either by proof of actual malice or by inference which might be drawn from an alleged lack of probable cause. It contends that where the plaintiff-appellant negates such an inference in his own case, the trial court must direct a verdict for the defendant-appellee. Wesko v. G.E.M., Inc., 272 Md. 192, 321 A. 2d 529 (1973); Siegman v. Equitable Trust Co., supra. It urges that there is no evidence in the record that either Exxon or Moore, its employee upon whose affidavit the warrant was issued, harbored any malice or ill-will towards Kelly.

Our review of the facts, however, convinces us that there was evidence produced by appellant which justified submitting the issue of malice to the jury: The testimony of Moore, Kelly’s principal accuser, vacillated from his earlier position of having seen Kelly steal the 15 gallons of gasoline to his later statements (to the assistant state’s attorney) that “I could not physically see the cans lifted into the car, and could not say that I could see something I didn’t.” Kelly was suspended from employment and a week later fired from a job which he had performed satisfactorily for 17 years. The State policeman, Keen, and a representative of Exxon were permitted to search Kelly’s garage, but no Exxon property was found there. The value of the gasoline allegedly taken by Kelly amounted to approximately three dollars. It is not surprising then that having already imposed the sanctions of loss of employment and fringe benefits, Exxon — as evidenced by the following colloquy between counsel for Kelly and Moore — declined to bring any criminal charges:

“Q. Who are you sure of was there at that meeting, who are you sure, positive was at that meeting? A. Ashby Keen, Bud Ulle and A1 Roberts and myself.
Q. Okay. And at that time you said you didn’t want to bring any criminal charges? A. That’s correct.
Q. Who said that, did Mr. Ulle say that or Mr. Roberts? A. A1 Roberts.
Q. Did he say why? A. It has not been our practice as a company to bring criminal actions in this area, we have done it, but it is not a normal practice.”

It was Keen, as evidenced by his testimony which follows, who insisted that charges be brought against Kelly:

“Q. Isn’t it true that you, during this period between September 28 and October 6, informed Mr. Clinton that should Exxon decide not to allow Mr. Moore to execute an affidavit you would have to consider the possibilities of subpoening him to give testimony? A. Yes, sir.
Q. Why did you do that? A. Well, I felt Mr. Kelly should be charged just as the others were, and I wanted to see him charged.”

Moore in his testimony further illuminated the reason why criminal charges were placed against Kelly:

“Q. What did the State Police have to do with Mr. Kelly being charged? A. At the time we discussed in Mr. Bud Ulle’s office several other cases, I told them of the information that I had seen, that I had seen Kelly take fifteen gallons of gasoline, and we were told that we should press charges. We declined to do so. And [Keen] said, if we refuse to come down and make the charge I would be subpoenaed to come down and do so.
Q. How could you be subpoenaed to come down and do so? A. I was told by the State Police that I would be because I had seen a crime committed.” (Emphasis supplied).

It is obvious that Exxon’s decision to place the charge against Kelly was occasioned not by its desire to bring a miscreant to justice but to satisfy the demand of Corporal Keen. To describe the latter’s conduct as officious seems to us to be rather charitable. Exxon contends that it is not malicious as a matter of law for a private person to initiate a prosecution on the advice of a disinterested law enforcement officer to whom that person has disclosed all material facts. But these are not the facts in this case: It was the far from disinterested law enforcement official who insisted that the employee be charged and who threatened to subpoena the private individual if he did not cooperate in securing the warrant. It was to appease the police officer as well as to avoid the inconvenience and embarrassment of being subpoenaed to testify that Exxon authorized Moore to swear out the warrant. Whether Exxon’s submission to the police officer’s pressure amounted to a malicious act was, we believe, a jury question. It was for the jury to determine from the facts and the law whether the prosecution instituted by Exxon was justified or malicious. The maxim maleficia propositis distinguintur — evil deeds are distinguished from evil purposes — is here illustrated, where the swearing out of a warrant is not per se an evil deed but may be made one by the unacceptable purpose for which the act was done.

3) Did the trial court err in instructing the jury that the nolle prosequi could be considered by the jury as evidence of lack of probable caused

Exxon concedes that the termination of the criminal proceeding against Kelly by way of nolle prosequi was sufficient to permit Kelly to file an action for malicious prosecution. Norvell v. Safeway Stores, Inc., 212 Md. 14, 128 A. 2d 591 (1957). It is undisputed that dismissal by a magistrate at a preliminary hearing is prima facie evidence of a want of probable cause while acquittal after a trial is not. Banks v. Montgomery Ward & Company, Inc., supra. More difficult to ascertain is what the effect is, if any, of a nolle prosequi in the determination of the issue of probable cahse. Exxon argues that the trial court erred when it instructed the jury as follows:

“In considering whether or not there was a lack of probable cause in this case for the bringing of a larceny charge against the plaintiff by the defendants, the fact that the charges against the . defendants were nol prossed by the prosecution may be considered as evidence of want of probable cause. It does not mean it is; it just may be considered as evidence of probable cause álong with other elements in the case.”

Kelly, as cross-appellee, contends that this issue is not properly before this Court because in not stating the reason for its exception to the trial court’s charge to the jury, Exxon failed to comply with the requirements of Maryland Rule 554 d. The purpose of Rule 554 d is to insure that both the trial judge and opposing counsel understand the nature and the grounds of the exception. It provides an opportunity for the trial judge to correct, amend, or clarify an instruction before the jury retires to consider its verdict. No special form is required for the objection and no ground even need be stated provided all parties understand the reason for the objection. Stephens v. Dixon, 30 Md. App. 56, 351 A. 2d 187 (1976); Kraft v. Freedman, 15 Md. App. 187, 289 A. 2d 614, cert. denied, 266 Md. 736 (1972); Kowalewski v. Carter, 11 Md. App. 182, 273 A. 2d 212 (1971).

Our reading of the record convinces us that the trial court properly had before it the objection by Exxon to its instruction regarding the consideration to be given, if any, to the nolle prosequi. All parties understood the basis for the objection. The trial court elected to give an additional instruction to correct a deficiency in its original one — pointed out by Exxon by a second exception — but refused to change its original instruction that the jury could consider the entry of the nolle prosequi as evidence of a lack of probable cause. Under these circumstances, we do not believe the exception to the charge was waived, and the matter is properly before this Court. Maryland Rule 554 d; Stephens v. Dixon, supra; Kraft v. Freedman, supra.

The question of whether the jury may consider the abandonment of pending criminal charges by nolle prosequi as evidence of a lack of probable cause has not been resolved in Maryland. In Norvell v. Safeway Stores, Inc., supra, the Court stated:

“Whether such a termination [nolle prosequi] is evidence of a want of probable cause is a question on which the authorities are divided. Prosser inclines to the view that it is not. See also Western Union Telegraph Co. v. Thomasson, supra, page 838, and Shoemaker v. Shoemaker, 78 A. 2d, 605, 608 (N.J. App. Div.). The Restatement, Torts, § 665, takes the position that dismissal by a public prosecutor is not evidence of a want of probable cause, but contra, as to dismissal by a private prosecutor.” 212 Md. at 22-23.

In Norvell, two charges had been brought against the accused, the first by Safeway and the second by one of its employees. The accused was acquitted —- after a trial — on the charges brought by Safeway, and the second charge was nol prossed by the state’s attorney. The Court concluded that it could not attribute the nolle prosequi of the second charge to a determination by the state’s attorney that there had been a lack of probable cause at the time the warrant was sworn out.

Prosser, Law of Torts, § 119 (4th ed. 1971) states the applicable general rule as follows:

“A discharge brought about by the abandonment of the proceedings by the prosecuting witness or the prosecuting attorney usually is held to afford no evidence of lack of probable cause; but here again there are decisions to the contrary.”

The rule as announced in the Restatement of Torts, § 665 (1938) is equally ambiguous as to the effect of a nolle prosequi. We quote here the precise text of the section:

“§ 665 EFFECT OF ABANDONMENT OF PROCEEDINGS.
(1) Unless explained, the termination of the proceedings in favor of the accused at the instance of the private prosecutor who initiated them, or because of his failure to press the prosecution, is evidence of a lack of probable cause.
(2) The abandonment of proceedings by a public prosecutor acting on his own initiative after the prosecution has passed into his control, is not evidence that the private prosecutor acted without probable cause.” (emphasis supplied).

The Restatement’s Comment on Subsection (2) states the rationale of the subsection’s rule to be that the accuser should not be prejudiced by the action of the public prosecutor over whom he has no control. The Comment continues at 415-416:

“If, however, the action of the public prosecutor was at the instance of the private prosecutor or conditioned upon his consent, the inference that the latter had no probable cause for his action in initiating the proceedings would be permissible.”

We believe the rule of law stated in the Restatement to be the more equitable one. It permits the jury to consider the facts and circumstances surrounding the particular entry of the nolle prosequi as one of the elements to be considered in determining whether or not the private prosecutor had probable cause for the swearing out of a warrant. In this case, there was evidence from which it could be argued that the nolle prosequi was entered if not at the instance of Exxon at least with its knowledge and consent. While it is true that the transcript of the criminal proceedings contains an explicit statement by the assistant state’s attorney that “the State has taken upon itself to nolle prosequi the charge and not the complaining witness,” the testimony of Moore and Roberts (Exxon’s management personnel) belie that statement. We quote first a portion of the testimony of Moore:

“Q. Now, You were present at the trial in the Criminal Court of Baltimore City on December 18, 1973, were you not? A. Was that Mr. Kelly’s trial?
Q. Yes, sir. A. Yes, I was.
(Mr. Sharpe) The question was, who asked for the recess.
(The Court) Overruled.
(The Witness) I believe it was asked for by the State’s Attorney, but I am not sure.
By Mr. Harrison:
Q. Do you know who requested him to ask for a recess? A. No, I do not.
Q. Did the State’s Attorney hold a conversation with Exxon firm’s members of management? A. Yes.
Q. And who were those members of management? A. A1 Roberts, probably Bill Clinton and myself, and maybe some others, but I do not know.
Q. And what was discussed at those conferences with the State’s Attorney? A. Whether we, whether he would proceed with the case.
Q. Why? A. Because I could not physically see the cans lifted into the car, and could not say that I could see something I didn’t. He felt that, I assume he felt there was insufficient evidence to do it; I don’t know what his reason was.
Q. Insufficient evidence to convict the man? A. I assume that was his reason.
Q. So was a decision made to come back and nol pros the case? A. Yes; the State’s Attorney made that decision.”

We now quote from the testimony of Roberts:

“Q. Did you participate in any conference with the State’s Attorney for Baltimore City? A. Yes, I did.
Q. Who else from Humble participated in those conferences? A. As I recall, it was Bill Clinton, myself — I am not sure whether Brady Moore was in the office at the time. I know it was Bill and myself and I think the gentleman’s name was Cymek, the assistant.
Q. Wasn’t it decided to nol pros that case?
A. Maybe. Can I walk you through this?
Q. Sure, go ahead. A. When I saw the Humble Oil and Refining v. Stuart Kelly [sic], this is when I began to be more familiar with the investigating activity and Corporal Keen and this type of thing. I said, 1 am not really clear as to whether or not this is the way the company’s understanding of the case is supposed to be. I wanted to call our attorneys at Hunt Valley. After having gotten in touch with Mr. Dulany, who is our house counsel, I suggested he talk directly to the other lawyers since I didn’t want to try to broker legal jargon.
Q. Mr. Cymek? A. Yes.
Q. Did you hear anything Mr. Cymek said to Mr. Dulany? A. I could hear him talking but I didn’t pay attention.
Q. You don’t know what was said? A. No, I do not.
Q. What was the result of that conversation? A. You have to understand, the Judge was telling us to get out and Mr. Cymek was running back and forth, and on one of his return trips he said the case had been nol pressed, which I understood like I do other legal jargon. I assumed it was over.
Q. You understood nol pros? A. He told me and then he explained it to me.” (emphasis supplied).

We believe the trial court was correct in instructing the jury that it might consider the facts and circumstances surrounding the entry of the nolle prosequi together with all the other evidence in the case in determining whether Exxon had probable cause to instruct its employee to swear out the warrant against Kelly.

We have carefully considered the extensive record and the excellent briefs filed by the parties to this suit and find that the trial court committed no reversible'error in this portion of the proceedings.

II

We must now consider the issues raised by Kelly, the original appellant in this case, and Exxon, the original appellee. The basic issue raised by Kelly is:

1) Did the trial court err in granting appellee’s motion in limine, thus precluding the appellant from introducing evidence and arguing to the jury those facts concerning his loss of fringe benefits and wages allegedly incurred by reason of Exxon’s wrongful firing of him and the malicious prosecution of the appellant by his employer?

Before the trial of the case was begun on its merits, Exxon filed a motion in limine requesting the trial court to preclude the appellant from introducing any evidence concerning his lost wages and loss of fringe benefits arising out of the alleged improper termination of his employment by Exxon. Exxon advanced two grounds for its motion: 1) That the alleged damages were not proximately caused by the malicious prosecution suit; and 2) That any. damages recoverable for these losses could only be recovered under the grievance arbitration provisions of the collective bargaining agreement between Exxon and its employees and were not properly recoverable in the malicious prosecution suit. The trial court granted the motion in limine on the first ground, and the trial proceeded with these items of damage excluded from the evidence.

The trial court held that the loss of benefits and wages was not proximately caused by the malicious prosecution of Kelly. The court ruled that Kelly was terminated as a result of the company’s contention that he had committed a violation of a “posted offense,” i.e., stealing company property. Kelly was originally suspended on October 8, 1973, and terminated on October 15. The affidavit for the issuance of the warrant was not executed by Moore until 10 days after Kelly’s termination. Whatever damages occurred by reason of his alleged improper termination occurred prior to the prosecution and would have occurred even in the absence of the criminal prosecution.

As authority for his position that the trial court should not have granted the motion in limine, appellant refers to the language found in Fields v. Victory Chain Store, Inc., 300 N.Y.S.2d 688, 691-92 (S. Ct. Oneida Co., 1969):

“The measure of damages in an action for malicious prosecution include injuries to the plaintiff’s reputation and character resulting from the false accusation and also recovery may be had on account of mental suffering and humiliation due to the wrongful charge. Also included are the reasonable legal expenses including counsel fees. The damages recoverable in a malicious prosecution action since it is an action based upon a willful or intentional act are those directly and proximately resulting from the original wrong, even though the damages are beyond the limits of those naturally and reasonably to be anticipated.”

Appellant in his brief and argument before us contends that it was the “false accusation” which proximately caused the alleged loss of wages and fringe benefits. The only false accusation alleged, however, was that he had stolen property from Exxon, and it was as a result of that allegation that he was terminated 10 days before the beginning of prosecution. We agree with the trial court that even without the criminal prosecution, Kelly would have suffered all of the lost wages and fringe benefits which he seeks to recover as consequential damages in the malicious prosecution suit. We believe the able trial judge was correct in holding that the damages flowing from the allegedly improper termination were recoverable, if at all, in the arbitration proceedings or in a breach of contract action but not in this malicious prosecution action.

Appellant raises as a corollary to its objection to the granting of the motion in limine another issue:

2) Did the existence of arbitration procedure required in Exxon’s collective bargaining agreement with its employees preclude Kelly from claiming as damages lost wages and fringe benefits in the malicious prosecution suit?

At the time of the occurrence of these events, there was in existence a collective bargaining agreement between Exxon and its employees with provisions governing the handling of grievances and arbitration in disputes between the employer and employee.

Kelly was discharged by Exxon on October 15, 1973; grievance proceedings were instituted by the Union and Kelly in December of 1973. The parties were unable to reach a satisfactory resolution of the grievance at the preliminary stage, and the matter was referred to an impartial arbitrator for final and binding arbitration. The arbitrator concluded that the discharge could not be contested because the grievance was not filed within the time period required by Article XVIII of the collective bargaining agreement. The Union and Kelly filed an action in the United States District Court of Maryland seeking to overturn the arbitrator’s decision. The Honorable Joseph H. Young of that Court granted Exxon’s motion for summary judgment, affirming the arbitrator’s conclusions. On appeal, the District Court’s action was affirmed by the United States Court of Appeals for the Fourth Circuit.

Under the usual grievance procedure of a collective bargaining agreement, an employer is entitled to immunity from civil suit by individual employees who have or could have availed themselves of the grievance procedures. Meola v. Bethlehem Steel Co., 246 Md. 226, 228 A. 2d 254 (1966); Henthorn v. Western Md. Ry. Co., 226 Md. 499, 174 A. 2d 175 (1961).

Henthorn is apposite both as to facts and law. In that case, an employee was discharged for removing wire from his employer’s premises. The discharge was made pursuant to provisions contained in the company’s collective bargaining agreement. The union and the employee availed themselves of the review procedures provided by the terms of the agreement, and the determination of the propriety of the discharge was upheld. In the interim, the employee brought a civil suit for damages alleging wrongful discharge and defamation of character. On appeal, the Court of Appeals stated the narrow issue before it to be as follows:

“[Wjhether the plaintiff-appellant, having processed his claim for reinstatement and back pay through the internal appellate procedures available to him (through the aegis of the Brotherhood) under the employment agreement, as he was required to do, and elected to further litigate the propriety of his discharge before the Special Board of Adjustment created for that purpose . . . could thereafter maintain his suit for damages for wrongful discharge.”

The Court's answer to this question was short, if not sweet. It said, “We think he could not.”

It seems clear that the rationale of the decisions is that to permit interference by the courts with the binding grievance procedures negotiated in a collective bargaining agreement would destroy the purpose and effectiveness of the agreement. See Union P.R. Co. v. Price, 360 U. S. 601, 79 S. Ct. 1351, 3 L.Ed.2d 1460 (1959), (quoted in Henthorn); Dewey v. Reynolds Metal Company, 429 F. 2d 324 (6th Cir. 1970).

Appellant suggests that in this case arbitration is not the sole and exclusive remedy for a wrongful discharge because the collective bargaining agreement contains no explicit provision stating that arbitration is the sole remedy. That argument, however, has already been considered by the Court of Appeals in Jenkins v. Wm. Schluderberg-T.J. Kurdle Co., 217 Md. 556, 144 A. 2d 88 (1958). The collective bargaining agreement in that case did not contain any express, affirmative statement that the only remedies which employees covered by it may have against their employer for alleged breaches of the agreement shall be through the grievance procedures provided for by the agreement. The Court held that the individual’s remedy for a wrongful discharge as a general rule rested exclusively in the grievance procedure. Absent an allegation that the Union had unfairly and capriciously refused to process a properly presented grievance, an employee by failing to abide by the grievance procedure loses both his right to arbitrate and to litigate the discharge.

Kelly asserts that Article XXXII of Exxon’s collective bargaining agreement explicitly states that nothing in the agreement shall affect certain benefit plans, that at the least he should have been permitted to introduce evidence as to those lost fringe benefits.

Appellee suggests that in considering these benefits, it is necessary to draw a distinction between those benefits which are contingent upon employment and those which are not. We agree in the first instance — that Kelly’s discharge is dispositive of his non-entitlement to these benefits. As to those which are not contingent on continued employment, Exxon might be liable to Kelly for a breach of contract. Kelly may not, however, recover these damages for breach of contract in a malicious prosecution suit. If he has improperly been denied benefits under Article XXXII of the agreement, his remedy would be to seek redress for the breach of contract.

For the reasons we have recited in this opinion, we find no error in the rulings of the trial court below and shall affirm the judgments for compensatory and punitive damages entered against Exxon.

Judgments affirmed.

Costs to be divided between appellant and appellee.

      . The manifold lines of a tank truck serve the purpose of transferring product from a particular compartment of the truck to an external storage truck. The manifold lines are equipped with a series of valves which permit the operator to direct the flow of product.

      . Ulle and Roberts were management personnel of Exxon.

      . Rule 554 d of the Maryland Rules of Procedure provides: “If a party has an objection to any portion of any instruction given, or to any omission therefrom, or to the failure to give any instruction, he shall before the jury retires to consider its verdict make such objection stating distinctly the portion, or omission, or failure to instruct to which he objects^ and the ground of his objection. Opportunity shall be given to make the objection in open court out of the hearing of the jury upon application either orally or in writing, made before or after the conclusion of the charge."


text:
    E. WILLIAM HALL, JR. v. SANDRA BAUGHMAN
    [No. 603,
    September Term, 1976.]

      Decided March 14, 1977.

    The cause was argued before Gilbert, C. J., and Menchine and Lowe, JJ.

      Joel Marc Abramson, with whom were Talkin & Abramson on the brief, for appellant.

      Kenneth D. Short, with whom were Bounds & Short on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

E. William Hall, Jr. (husband) filed an amended bill of complaint in the Circuit Court for Howard County against his former wife, Sandra Hall, now remarried and known as Sandra Baughman (but to be described herein as “wife”).

The amended bill in substance alleged that husband had executed a deed whereby the title to 9522 Good Lion Road, in Howard County, Maryland, had been granted and conveyed to the wife; that execution of the deed had been made upon condition that an acceptable separation agreement between husband and wife could be reached; and that delivery of the deed to the wife was not intended to occur until such condition had been met.

The wife’s answer denied that execution of the deed was conditional or that delivery of the same was not intended.

On May 21, 1976, testimony by husband and witnesses in his behalf was taken in open court with certain documentary evidence filed as exhibits. After husband rested, counsel for wife moved for dismissal of the bill of complaint pursuant to Maryland Rule 535. The motion was granted by the chancellor.

In the face of such a motion, husband “was entitled to have the chancellor consider the evidence and all logical and reasonable inferences deducible therefrom in a light most favorable to him.” Price v. Levin, 248 Md. 158, 160, 235 A. 2d 547, 548 (1967).

We shall examine the record in the light of that entitlement. Appellant produced uncontroverted evidence that on November 22, 1974, he met his wife at the offices of her attorney. Certain documents were prepared at that time. In the course of discussions husband telephoned his attorney, telling her that he was about to execute a separation agreement and a deed concerning jointly held real property. His lawyer advised that he bring her the documents for her review. Appellant thus detailed his actions upon receiving that advice:

“Q And what did you tell [counsel for wife]?
A That after discussion with Miss Brooks that I felt that it would be very important, that she had insisted that I bring back the documents for her review before we let the agreement and the deed be entered, because she felt that I might not be aware of many of those things. Things that might be important for my protection.
Q And were you ever given a package of documents?
A Yes, I was.
Q Who gave you those package of documents?
A The then Mrs. Hall.
Q And what did she — did she say anything to you when she gave you the package?
A No. It was my understanding I had all the documents.”

He explained that he had signed the deed “because there was a notary there it seemed convenient to sign it there, and I simply was going to take it back and have it reviewed. Sort of like signing a check that you aren’t going to give to somebody and, having the documents reviewed.”

Other testimony by appellant to similar effect included the following:

“Q Now you say you had the idea that you, that you could always tear up this deed if you didn’t — like a check you had written out and hadn’t passed it, if you didn’t like it later? Is that what you thought?
A Yes, Your Honor, because I thought I had all the copies of the deed with me when I went over to Rockville to Miss Brooks’s office.
Q You thought you could tear up a deed you had executed to somebody else, without their consent?
A Yes, I did.”

Appellant called as a witness the attorney who represented him at the time. She said that husband had brought to her office the documents she believed to have been signed by her client and then said:

“A I redrafted the agreement containing most of the major things that they had in mind when they had evidently talked about it and rewrote the waiver of alimony paragraph in particular.
Q And did you send that agreement to Mr. Vaughan?
A Yes, I did. That’s the agreement I sent him on November 26th, that was totally rewritten and, retyped.
Q And Exhibit Number Eight which I am now showing you was the letter which you sent to Mr. Vaughan [wife’s counsel] and the agreement which you then revised.
A Yes.
Q Now, within that agreement did you deal with the transfer of the house?
A Yes, I did.
A I never had any idea that the house had been transferred between the parties. Throughout the entire case, I always was under the impression that they both jointly owned the real estate property.
Q In your negotiations with your client, and Mr. Vaughan, was the house a very important factor?
A It was a major factor, it was the only thing they had that was of any value, everything else was debt.
Q After November 22, 1974 were you still negotiating regarding the transfer of the house as a part of the separation of the parties'?
A Yes, I was.” (Emphasis added.)

Appellant also testified that about October 1, 1975, he learned for the first time that the executed deed had not been included among the papers brought from Vaughan’s office and delivered to appellant’s counsel. He brought the subject action on October 27,1975.

Appellant testified that many discussions concerning title to the house were had after the date of the execution of the deed. He said that in March, 1975, he met with Mrs. Hall and Roland Baughman (her present husband) where “we talked about an agreement to transfer the house at that time.” He pointed out also that in documents submitted to the Circuit Court in alimony hearings in 1975 he had submitted financial statements listing as an asset his one-half interest in the Good Lion Road home.

The deed, although executed on November 22, 1974, was not recorded until January 13,1975.

On this testimony (the truth of which for present purposes we are required to assume), we find Chillemi v. Chillemi, 197 Md. 257, 78 A. 2d 750 (1951), dispositive of the appeal. In Chillemi, Judge Delaplaine, speaking for the Court of Appeals, said at 263-65 [753-54]:

“It has long been held at common law that there cannot be a valid delivery of a deed to the grantee named therein upon a condition not expressed in the deed. The ancient rule that the mere transfer of a deed from the grantor to the grantee overrides the grantor’s explicit declaration of intention that the deed shall not become operative immediately is a relic of the primitive formalism which attached some peculiar efficacy to the physical transfer of the deed as a symbolical transfer of the land. 9 Wigmore on Evidence, 3d Ed., secs. 2405, 2408; 4 Tiffany, Real Property, 3d Ed., sec. 1049. In England in ancient times there could be no change of possession of land until a livery of seisin had taken place. A knife was produced and a piece of turf was cut, the turf was handed over to the new owner. Later, under the Roman influence, the written document came into use. These documents, which few people had the art to manufacture, were regarded with mystical awe. Just as the sod had been taken up from the ground to be delivered, so the document was laid upon the ground and then solemnly lifted and delivered as a symbol of ownership. In this way the principle developed that the delivery of the deed was the mark of finality.
“Through the centuries the courts have struggled to break away from this strict formalism. The first sign of flexibility in the rule was the concession that the delivery of a deed may be conditioned upon the performance of some act or the occurrence of some event, provided that such conditional delivery, known as delivery in escrow, is accomplished by having the deed placed in the hands of a third person for subsequent handing to the grantee. But the concession of conditional delivery was not allowed where the deed was placed directly in the hands of the grantee in anticipation of some future event. Thus this Court, recognizing the rule that a deed cannot be delivered in escrow to the grantee, said in Buchwald v. Buchwald, 175 Md. 115, 120, 199 A. 800, that if a deed absolute on its face is deposited by the grantor with the grantee, to be held by the grantee in escrow, such a deposit becomes a delivery which operates to vest the title in the grantee immediately.
“But there is actually no logical reason why a deed should not be held in escrow by the grantee as well as by any other person. The ancient rule is not adapted to present-day conditions and is entirely unnecessary for the protection of the rights of litigants. After all, conditional delivery is purely a question of intention, and it is immaterial whether the instrument, pending satisfaction of the condition, is in the hands of the grantor, the grantee, or a third person. After the condition is satisfied, there is an operative conveyance which is considered as having been delivered at the time of the conditional delivery, for the reason that it was then that it was actually delivered, although the ownership does not pass until the satisfaction of the condition. We, therefore, hold that it is the intention of the grantor of a deed that determines whether the delivery of the deed is absolute or conditional, although the delivery is made by the grantor directly to the grantee.
“As we have indicated, the title to property described in a deed delivered conditionally does not pass as long as the condition attached to the delivery of a deed is not satisfied. Therefore, when it becomes assured that the condition will not be satisfied, the deed loses all possible efficacy. In such a case the grantor will ordinarily desire to have the deed returned to him, in order to preclude the possibility of its being used afterwards to his detriment. 4 Tiffany, Real Property, 3d Ed., sec. 1053. In view of the presumption of delivery which naturally arises from the grantee’s possession of the deed, the burden rests upon the grantor, when he has delivered the deed to the grantee, to show (l'l that the delivery was conditional, and (2) that the condition was not satisfied.”

In the subject case the testimony of appellant went beyond the showing in Chillemi, supra. Appellant’s testimony was that (1) execution of the deed was conditional; (2) delivery of the deed was not intended; and (3) the condition was not satisfied. In such circumstances, the chancellor should have required the defendant to respond to the complainant’s proof and, if that proof was controverted, to resolve the conflicting evidence.

Order of dismissal reversed.

Costs to be paid by appellee.


author: Melvin, J.,

text:
    SAM L. HARRELL v. SEA COLONY, INC. et al.
    [No. 605,
    September Term, 1976.]

      Decided March 14, 1977.

    The cause was argued before Gilbert, C. J., and Thompson and Melvin, JJ.

      Branko Stupar, with whom were Faulkner, Shands, Stupar & Tucker on the brief, for appellant.

      Courtland K. Townsend, Jr., with whom was John Burgess Walsh, Jr., on the brief, for appellees.
   Melvin, J.,

delivered the opinion of the Court.

By written contract, dated 14 November 1972, the appellant (plaintiff below), Sam L. Harrell, agreed to buy, and the appellee (one of the defendants below), Sea Colony, Inc., a Delaware corporation, agreed to sell for $74,900.00 a condominium unit to be constructed by Sea Colony, Inc. in Bethany Beach, Delaware. The contract called for a deposit of $11,235.00 and the balance of the purchase price to be paid “at settlement”. The $11,235.00 deposit consisted of $5,000.00 cash paid by Harrell and the execution by him, pursuant to the contract, of a promissory note for $6,235.00, payable “at settlement”. Other pertinent parts of the contract were the following provisions:

“. . . . In the event of a default by the Purchaser hereunder, Seller shall have the right to retain the cash deposit and enforce the Note ... .”
“Settlement shall take place within thirty (30) days of the posting of written notice to the Purchaser of substantial completion of the above unit, and at the offices of an attorney selected by the Seller....”
“In the event the above unit is not delivered to the Purchaser on or before January 1, 1974, the Purchaser shall have the right to terminate the Agreement and secure refund of deposit.”

On 12 January 1974, the parties agreed in writing to extend the limiting date for delivery to 31 December 1974.

' On 12 November 1974, Harrell filed a declaration in the Circuit Court for Montgomery County against Sea Colony, Inc. (Sea Colony) and its agent, Carl M. Freeman Associates, Inc. (Freeman), seeking damages for an alleged anticipatory breach of the contract. Harrell claimed that the defendants had “repudiated” the contract and sold the condominium unit to another buyer for more than the contract price. He claimed as damages the $5,000.00 cash deposit as well as the difference between the contract price and the amount for which the unit was sold to the other buyer. Harrell also claimed, in his second amended declaration, punitive damages. After considerable pre-trial maneuverings, the case finally came on for trial before the court sitting without a jury on 6 May 1976.

The evidence before the trial judge consisted of various documentary exhibits and the live testimony of the appellant Harrell and that of Mr. Norman Dreyfuss who was an employee of Freeman. The judge concluded that the appellant had without justification unilaterally cancelled the contract and judgment was entered in favor of both appellees, Sea Colony and Freeman. Because we find the evidence legally insufficient to support the trial court’s conclusion that Harrell unilaterally cancelled the contract, we shall vacate the judgment as to Sea Colony. As to Freeman, however, we shall affirm the judgment in its favor.

Regarding Freeman, the most the record shows is that after the contract of sale was executed by Harrell and Sea Colony, Freeman acted only as agent for Sea Colony, its disclosed principal. Freeman was not a party to the contract and its name nowhere appears therein. The general rule regarding an agent’s contractual liability to a third party is set forth in A. S. Abell Co. v. Skeen, 265 Md. 53, 288 A. 2d 596 (1972):

“.... If an agent, acting for his principal, enters into an agreement with a third party, he is personally responsible under that contract if the identity of his principal is not fully disclosed and is in fact unknown to the third party. This concept encompasses two basic factual situations; where the third party knows there is an agency relationship but is unaware of the principal’s identity; and where the third party is not even cognizant that an agency relationship exists, [citations omitted]. Generally, if an agent fully discloses the identity of his principal to the third party, then, absent an agreement to the contrary, he is insulated from liability, [citations omitted]. However, this is subject to exception when the purported principal that is disclosed is nonexistent or fictitious; or when the principal is legally incompetent, [citations omitted].” Id. at 56. (Emphasis added.)

Here, there is no indication that in his dealings with Freeman, Harrell was not fully aware that Freeman was no more than an agent for Sea Colony. Nor is there any evidence or claim that Sea Colony, as a corporate entity, is “nonexistent or fictitious” or “legally incompetent”. Under these circumstances, we hold that the judgment in favor of Freeman was properly entered, albeit not for the reason given by the trial court.

We turn now to the principal issue raised in this appeal, and that is the correctness of the trial court’s ruling that Harrell had breached the contract. There is no evidence that Sea Colony or its agent Freeman ever gave notice, written or otherwise, to Harrell “of substantial completion” of the condominium unit he had agreed to purchase. On 28 May 1974, Harrell requested of Dreyfuss that he be allowed to assign the contract. He was told that he could not do so. Harrell testified that he then told Dreyfuss “that I would be interested in getting out of the contract, that the units were selling for substantially more than my contract price, we all knew this, and I asked them if they would be interested in taking my contract back and reselling the unit, they could make any additional profit on it, if they could, and he said that he would look into the matter and he would be in touch with me”. Mr. Dreyfuss, testifying for the defendants, corroborated much of Harrell’s testimony concerning this conversation and did not contradict any of it. He said:

“Mr. Harrell stated he wanted to cancel the contract, did not want to proceed with settlement, and indicated that he wanted another disposition of his deposit. He did discuss the matter of the assignability, and I informed him again it was not assignable, and that was pretty much the gist of the conversation.
He told me that the reason was his personal financial situation, which was such that he felt he could not proceed with the purchase of this unit.”

It was this 28 May conversation that the trial court seems principally to have relied upon to conclude that Harrell had anticipatorily breached the contract. We think the conclusion was clearly erroneous, particularly in view of subsequent events.

Following the 28 May conversation between Harrell and Dreyfuss, Dreyfuss sent Harrell a letter in mid-July enclosing a “cancellation request which must be signed by you in order for us to process your release”. (Emphasis added). The letter continued:

“Please detail the reasons for your request, and the factors effecting your decision not to proceed with the settlement of Unit 901-S, Phase II.
Once we receive this information we will be able to proceed with the determination on the disposition of your deposit”. (Emphasis added).

Harrell responded with a letter dated 17 July 1974 as follows:

“Dear Mr. Dreyfuss:
Enclosed herewith is the Release relative to the above. You will note that I have predicated this upon the refund of my deposit and execution of the Release by Sea Colony by July 25th. This is necessary due to the proximity of the completion of the building so that unless Sea Colony is going to release me from the Contract and refund my deposit I will need as much time as possible to take the necessary action to protect my interest in this matter.
Thank you for your consideration in this matter.”

The “Release” enclosed with Harrell’s letter was the “Cancellation Request” form sent to him in mid-July. He stated therein that he “%oishe[d] to rescind his Agreement for the following reasons: Personal financial considerations and the refusal of Sea Colony to allow the assignment of this contract. This Release is contingent upon refund of deposit by July 25, 1974”. (Emphasis added).

On 18 August 1974, Sea Colony entered into a contract with a third party to sell the condominium unit for $82,000.00, i.e., $7,100.00 more than the original contract price that Harrell had agreed to pay. In the meantime, so far as the record discloses, there had been no communication between Harrell and Sea Colony or its agent. Thereafter, Harrell received the following letter from Freeman, dated 23 August 1974 — five days after Sea Colony had re-sold the unit to a third party:

“Dear Mr. Harrell:
We are accepting your request to cancel your unit number 901-South of Sea Colony Phase II. However, due to your being unwilling to comply with the terms of the contract, we are keeping your deposit as liquidated damages.” (Emphasis added).

This letter was followed by another from Freeman, dated 28 August, 1974:

“Dear Mr. Harrell:
Enclosed is an executed release which relieves you of any further obligation towards the purchase of a home is Sea Colony. Enclosed you will find your cancelled Promissory Note in the amount of $6,235.00.
We are sorry that you are unable to proceed with the purchase of one of our homes. If in the future we can be of service, we would be pleased to have the opportunity to serve you.”

The “executed release” enclosed with this letter consisted of the same “Cancellation Request” form that Harrell had forwarded to Freeman with his letter of 17 July 1974. The form contained a space for “Agency Approval” and was executed by an “authorized officer of seller”. The executing officer, however, had crossed out Harrell’s statement on the form that “This Release is contingent upon refund of deposit by July 25,1974”.

In our view, Sea Colony unilaterally attempted to convert Harrell’s request for a mutual rescission of the contract to an anticipatory breach or repudiation on his part.

In 6 Corbin, Contracts, § 973, the standard for determining an anticipatory breach of contract is set forth:

“In order to constitute an anticipatory breach of contract, there must be a definite and unequivocal manifestation of intention on the part of the repudiator that he mil not render the promised performance when the time fixed for it in the contract arrives. Doubtful and indefinite statements that the performance may or may not take place and statements that, under certain circumstances that in fact do not yet exist, the performance will not take place, will not be held to create an immediate right of action. A mere request for a change in the terms or a request for cancellation of the contract is not'in itself enough to constitute a repudiation.” (Emphasis added).

Measured against that standard, we think the evidence in this case falls short of warranting a finding that Harrell breached his contract. Sea Colony argues that Harrell’s statements to Dreyfuss in their 28 May conversation that he (Harrell) “wanted to cancel the contract” and “did not want to proceed with settlement” because his “personal financial situation ... was such that he felt he could not proceed with the purchase of this unit” amounted to an impermissible unilateral cancellation of the contract and that Sea Colony was therefore justified in retaining Harrell’s $5,000 cash deposit and in re-selling the property to a third party. Sea Colony concedes that Harrell’s “Cancellation Request” in July “was simply an offer of the appellant to rescind”. It contends, however, that the “contract at that time was already breached” by Harrell and therefore Sea Colony “was under no obligation to even consider” the rescission offer.

As evidence of Harrell’s alleged anticipatory breach of contract, in addition to Harrell’s 28 May conversation with Dreyfuss, Sea Colony points to the fact that Harrell failed to answer requests from Sea Colony to choose which of two attorneys’ offices he preferred as the location for settlement. As we have already noted, the contract provided that “Settlement shall take place within thirty (30) days of the posting of written notice to the Purchaser of substantial completion of the ... unit, and at the offices of an attorney selected hy the Seller.” (Emphasis added). In early April 1974, Harrell received a letter from Freeman indicating that the “Seller” had “selected” two alternative law firms at which settlement would take place — one located in Delaware and one located in Bethesda, Maryland. The letter asked Harrell to “indicate which location would be more desirable for you”. The letter concluded with this statement: “Once we have received your preferences, the attorney’s office will be contacting you with regard to more specific information”. Harrell did not reply to this letter, nor to an identical one he received in early May. His failure to reply can not be regarded as even a partial breach of contract, for there is nothing in the contract imposing upon him a duty to do so — and, as we have already indicated, there is no evidence that at the time he received these letters the triggering event for scheduling a settlement (that event being written notice of substantial completion of the condominium unit) had occurred, or that he ever refused to attend a settlement, or otherwise refused or failed to fulfill any obligation imposed upon him by the contract.

In summary, we hold that the evidence as a whole is legally insufficient to permit a finding that there was “a definite and unequivocal manifestation of intention” on Harrell’s part that “he ... [would] not render the promised performance when the time fixed for it in the contract arrive[d]”. 6 Corbin, Contracts, supra. See also, Friedman v. Katzner, 139 Md. 195, 114 A. 884 (1921), where the Court of Appeals, in discussing the doctrine of anticipatory breach, made it clear that the alleged repudiator’s “refusal to perform must be positive and unconditional” in order that it may be treated as an anticipatory breach.

Because the trial court found that Harrell had breached the contract, it did not reach the precise issue of whether or not Sea Colony was guilty of an anticipatory breach as alleged by Harrell when it (Sea Colony) resold the property to a third party. Although it may be said that the trial court did, at least by implication, determine that issue, it did not do so in the context of a non-breach by Harrell. We think the issue should now be decided in that context by the court below upon remand rather than by us in the first instance. Md. Rule 1085. We think the issue can be determined by the trial court on the present record and see no necessity for further evidence to be taken. We point out, however, that on the evidence before it a finding by the trial court that Sea Colony breached the contract of sale may not be required. On the evidence, another possible finding would be that there was a mutual rescission of the contract effected by the words and conduct of the parties. Under the particular circumstances of this case, these two possible alternative findings (a breach by Sea Colony or mutual rescission) are mutually exclusive. If the latter finding be made, it would seem that Harrell is entitled to the return of his $5,000.00 deposit. If the former finding be made, he may, in addition to the deposit, be entitled to further damages for Sea Colony’s breach.

Judgment for appellee Carl M. Freeman Associates, Inc. affirmed.

Judgment for appellee Sea Colony, Inc. vacated.

Case remanded for further proceedings not inconsistent with this opinion.

Costs to be paid by appellee Sea Colony, Inc.

      . The fact that as a foreign corporation Sea Colony may have failed to comply with Code Art. 23, § 90 (qualifying to do business in this State), does not affect the validity of the contract or Sea Colony’s liability thereunder. See, Code Art. 23, § 91.

      . The contract provided that it “shall not be assigned or transferred without written consent of the Seller”.


author: Thompson, J.,

text:
    ROBERT H. KRAFT v. SUSSEX CONSTRUCTION CORPORATION, INC.
    [No. 621,
    September Term, 1976.]

      Decided March 14, 1977.

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

      S. Richard O’Day for appellant.

      Charles H. Acker, III, with whom was Leonard C. Collins on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

On July 12, 1974, a summary judgment in the amount of $9,270.86 was entered in favor of Robert H. Kraft, the appellant, against Sussex Construction Corporation, Inc., appellee, in the Circuit Court for Montgomery County. On September 24, 1975, appellee filed a motion to strike out the judgment on the basis that the court had no jurisdiction to enter the judgment because the appellee had been served as Sussex Construction Company and had not been re-served under its correct name, prior to the entry of the summary judgment. There is no contention here that the service on Richard Gildar, the resident agent of the appellant and its president and treasurer was otherwise improper.

On October 21, 1975, the court granted the motion to strike the enrolled judgment entered on July 12, 1974. On November 21, 1975, the appellant filed a motion for reconsideration as well as an appeal to this Court. The appeal was not perfected, probably for the reason that it was filed one day too late. The motion to reconsider was denied May 27, 1976. The instant appeal was timely filed from that denial.

Under Courts and Judicial Proceedings Article § 12-301, this Court has jurisdiction to hear an appeal only from final' orders. Certain statutory exemptions are set out in Courts Art. § 12-303. Other exceptions are established by case law such as the denial of a plea of double jeopardy, Neal v. State, 272 Md. 323, 322 A. 2d 887 (1974). The Court of Appeals has also held that the granting of a motion to strike out an enrolled judgment under Md. Rule 625 is in the nature of a final judgment and, therefore, appealable. The same rule applies to the denial of a motion to strike out an enrolled judgment. First Federated Commodity Trust Corp. v. Commissioner of Securities, 212 Md. 329, 322 A. 2d 539 (1974).

In the case at bar the appellant allowed the appealable order striking out the judgment to become final by not filing a timely appeal and by allowing 30 days to pass before he filed his motion to reconsider. We will, therefore, treat the motion to reconsider as a motion to strike a final judgment under Maryland Rule 625 a, which requires a showing of “fraud, mistake or irregularity” as to an enrolled judgment to justify favorable action. We do not find any “fraud, mistake, or irregularity” during the course of the hearing to strike the judgment. The only mistake alleged by the appellant is that the trial judge erred in finding an improper service of process at the original hearing. This is not the type of mistake contemplated by the rule. Williams v. Snyder, 221 Md. 262, 155 A. 2d 904 (1959); Rhodes Co. v. Blue Ridge Co., 218 Md. 329, 331, 146 A. 2d 771 (1958). While the cases clearly show that improper service of process is a proper ground to strike a judgment under Md. Rule 625 a, there is no dispute as to service of process for the motion to strike hearing. Miles v. Hamilton, 269 Md. 708, 309 A. 2d 631 (1973); Ashe v. Spears, 263 Md. 622, 284 A. 2d 207 (1971), cert. denied 406 U. S. 958 (1972). We find no error on the part of the trial judge in denying the motion to reconsider no matter what we may think as to his original action in striking the judgment.

Inasmuch as the trial court will have before it, when it considers the now pending question of the running of the statute of limitations, the same question as it had before it when it struck out the original judgment, we will express our views by way of dicta as to the propriety of striking that judgment. Eastgate Associates v. Apper, 276 Md. 698, 704, 350 A. 2d 661 (1976).

We think the trial court was in error when it struck the judgment. It appears that the court did not have before it the case of Western Union Telegraph Co. v. State, ex rel. Nelson, 82 Md. 293, 33 A. 763 (1896), wherein Western Union Telegraph Company was sued and served and that was held sufficient to bind the Western Union Telegraph Company of Baltimore City. The person served was an officer of both Western Union of Baltimore City, a Maryland corporation, and Western Union Telegraph Company, a New York corporation. The facts of the case showed, however, that there was no confusion on the part of the defendant as to who was being sued.- Nor did the trial court have before it the more recent case of Ex Parte General News Bureau, Inc., 162 Md. 643, 161 A. 259 (1932), where the Court held that a summons directed to General News Service and not to General News Bureau, Inc. was sufficient to support a finding of contempt on the part of the corporation for failure to comply therewith.

Order of May 27, 1976 affirmed. Case remanded, for further proceedings.

Appellant to pay costs.

      . Md. Rule 5 o defines a judgment as follows: “ ‘Judgment’ means judgment at law, decree in equity and any other order of court final in its nature.”

      . See Hughes v. Beltway Homes, Inc., 276 Md. 382, 386-389, 347 A. 2d 837 (1975) for the definitions of those terms.