author: Lowe, J.,

text:
    VIMCO CONCRETE ACCESSORIES, INC. et al. v. JOSEPH R. MAGGITTI
    [No. 211,
    September Term, 1979.]

      Decided November 9, 1979.

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

      William O. Lockwood, with whom were Quinn, Scanlin, Maiberger & Lockwood on the brief, for appellants.

      C. J. Vaughey and Joseph J. D’Erasmo for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Joseph R. Maggitti (appellee), a branch manager of Vimco Concrete Accessories, Inc. (appellant ), voluntarily resigned on August 8,1975, after more than 10 years employment. He had been a member of a company sponsored profit sharing and .trust plan since its inception effective January 31, 1966. Following his voluntary termination of employment Maggitti, technically if not effectively, competed with Vimco through a partly owned company of which he was president. The question decided by Judge Nathaniel W. Hopper in the Circuit Court for Anne Arundel County, and to be decided here is whether such competition forfeited his rights to his interest in the profit sharing and trust plan or whether those rights vested upon his voluntary resignation.

The decision depended upon an interpretation of the Profit Sharing and Trust Agreement which said in pertinent part:

“5.05 Termination of Employment
(a) If the employment of a Member shall have ceased through no fault of the Member, ... the entire interest in the Fund then allocated to his account shall become vested....
(b) If the employment of a Member shall be terminated by the Company for proven dishonesty, ... disloyalty, ... gross insubordination, the commission of a crime, wilful destruction of the Company’s property or the property of an affiliated company, wilful and deliberate injury to an Employee of the Company, or if a participant enters into competition with the Company as an owner or Employee, all of the net value of the Fund credited to such Member’s account of the last preceding valuation date shall be forfeited ....
(c) If a Member’s employment shall terminate prior to retirement for any reason other than those specifically covered elsewhere in this Article V, his severance benefit shall be as follows:____”

At the conclusion of appellee’s trial at which he sought the benefits to which he claimed entitlement upon severance, the court held that there were only two methods by which employment termination was contemplated by the plan: 1) termination by the company for one of the specified causes in § 5.05 (b) which would effect a forfeiture, and 2) a no fault termination which would vest the member’s interest. The judge believed that a § (b) termination had as a condition precedent termination by the company and, therefore, the competition clause therein was inapplicable to appellee who had voluntarily quit.

Appellant complains that this is an erroneous interpretation in that the use of a disjunctive (“or”) preceding the competition clause provides an alternate to the specified company initiated termination, i.e., that a member forfeits if he is fired for cause, or if at any time after leaving Vimco for any reason, he competes. Appellant notes that a definition in Article I provides support for that interpretation when it defines

“[t]he term ‘if the employment of a Member shall have ceased through fault of his own’ shall mean voluntary termination of employment on the part of the Employee ....” •

Assuming ambiguity, we do not find the trial judge’s interpretation to be wrong.

The use of the disjunctive “or” was necessary to establish that each one of the eight causa improbitas for company termination was separately a reason for forfeiture, rather than using the conjunctive which would have compelled all eight to have been the cause of dismissal by Vimco to effect a forfeiture. There was no alternative to the holding that for a subsection (b) termination, company dismissal was a prerequisite.

The definition in Article I is without persuasive effect. Initially it should be noted that subsection (c) provides entitlement to a member terminated “for any reasons other than those specifically covered elsewhere in this Article V”. It does not provide disentitlement for terminations elsewhere in the agreement. Beyond that, the language being defined is nowhere found in § 5.05.

The key to the interpretation of § 5.05 (a) and (b) is in the succeeding subsection 5.05 (c) which addresses the “severance benefits”. Subsection (c) interprets (b) just as the trial judge did. It describes the fund as a “severance benefit” contemplating vestiture upon severance. That term in itself shows that the draftsmen did not intend the vesting or forfeiture to hang in abeyance to some undefined period subsequent to termination. It conditionally provides the specified “severance benefit”,

“[i]f a Member’s employment shall terminate prior to retirement for any reason other than those specifically covered elsewhere in this Article V ...

It establishes what shall vest item by item, and when it vests (at severance). Subsection (c) does not contain any divesting language such as — unless he ever thereafter competes, etc. Obviously, if the fund vests upon severance, it cannot be subsequently divested to effect a forfeiture without so specifying.

— the cross-appeal —

Despite having won the war, Maggitti complains that he has lost two of the battles. In computing the value of his share of the plan, the court awarded Maggitti 90% of his account balance which would have matured to 100% under the formula set forth in § 5.05 (c) only if he had "[t]en or more years of continuous participation in the Plan”.

It was conceded that the “account balance” was $14,974.46. The judge noted that § 2.01 provided that employees become members of the plan as of the effective date and that Article I defined “Effective date” as January 31, 1966, and “Anniversary Date” as each January 31 thereafter. Because Maggitti had 9 rather than 10 “January 31sts” thereafter,

“... the Court computes this time [as] nine (9) years but less than ten (10) full years as scheduled in (c) of Section 5.05. And under that schedule the Plaintiff would have a 90% vested interest.”

Maggitti argues that he was employed from May 1, 1965 to August 8,1975, a period of 10 years and 3 months. Although the plan did not go into effect until January 31, 1966, which appears to place Maggitti in “Nine but less than ten full years of continuous participation in the Plan” as the judge decided, Maggitti contends that Vimco credited him with a share of the 1965 profits on the “effective date” January 31, 1966. In Maggitti’s words,

“. . . it is the contention of the cross-appellant that the anniversary date of the plan is not the determining factor in arriving at the value of the cross-appellant’s share of the plan, but the determining factor is the number of years of continuous participation ...

The trial judge did not agree, was not aware, or did not acknowledge the argument that because an initial deposit was made on the day of the plan’s execution that all employees would have celebrated at that time one full year of participation in the plan on the day of its inception.

Maggitti’s reasoning would be persuasive if his evidence were more conclusive, but the testimony to which he points in the transcript is only to the effect that Vimco made contribution in its employees’ behalf from the 1965 profits. Conceding that however (which Vimco seems to do), the 1965 contribution enuring to Maggitti for 1965 appears to have been less than a full year’s contribution since Maggitti did not commence work for Vimco until May 1, 1965. Inferentially then, the judge could have disregarded the 1965 year’s contribution as something less than a full year’s participation just as he more obviously disregarded the portion of appellant’s last year of employment (because he had resigned on August 8, 1975).

While it is conceivable, and even likely, that appellant had been credited with his service for a portion of 1965, there was no evidence of any contribution or “participation” on Maggitti’s behalf in the plan beyond January 31, 1975. It seems obvious that there could have been no “participation” by Maggitti in the 1975 profits because profits were not known until the end of the year after his employment had terminated. Therefore, even if the judge were inclined to tack the 1965 portion of employment, for which there was evidence of “participation,” to the portion of 1975 during which Maggitti was employed (to August 8, 1975), there is no evidence of “continuous participation” beyond January 31st of that year. There is only evidence of employment. With these legitimate inferences available from the testimony, we cannot find the court to have been clearly erroneous.

Finally, Maggitti complains that he was entitled to interest on the money to which he was entitled upon severance from the date of termination (August 8, 1975) to judgment day. Prejudgment interest, however, is a matter of discretion with the factfinder, I. W. Berman Prop. v. Porter Bros., 276 Md. 1, 18 (1975), and there is a presumption that a judge’s discretion

" 'was not abused but was exercised with just regard to the rights and interest of both the plaintiff and the defendants,’ . . . .” Id. at 19, quoting Moreland, Inc. v. Moreland, 175 Md. 145, 149 (1938).

The burden is thus upon an appellant (or cross-appellant) to establish that the trial court abused its discretion and worked an injustice to th,e (cross) appellant by its award — or failure to award — interest. Id. at 19-20.

Judgment affirmed.

Costs to be divided equally between the parties.

      . Appellants also included the trustees of a Profit Sharing and Trust Agreement of the company.

      . Section 5.05 (c) reads in full as follows:
      “If a Member’s employment shall terminate prior to retirement for any reason other than those specifically covered elsewhere in this Article V, his severance benefit shall be as follows: (1) the amount of his contributions to the Fund plus (2) simple interest at the rate of three percent (3%) per annum, on his contributions, plus (3) an amount equal to the following percentage of the net value of his account on the valuation date next preceding the date of termination of membership; after first deducting the sum of items (1) and (2) above:
      Less than three full years of continuous participation in the Plan NONE

      Three but less than four full year[s] of continuous participation in the Plan 30%

      Four but less than five full years of continuous participation in the Plan 40%

      Five but less than six full years of continuous participation in the Plan 50%

      Six but less than seven full years of continuous participation in the Plan 50%

      Seven but less than eight full years of continuous participation in the Plan 70%

      Eight but less than nine full years of continuous participation in the Plan 80%

      Nine but less than ten full years of continuous participation in the Plan 90%

      Ten or more years of continuous participation in the Plan.100%”

      . This was by way of a statement of Maggitti’s account “as of January 31st, 1975”, admitted as Plaintiffs Exhibit No. 2.


source: Caselaw Access Project

license: Public Domain

text:
    FREDERICK HUTCHINSON a/k/a Eric Barksdale v. STATE OF MARYLAND
    [No. 231,
    September Term, 1979.]

      Decided November 9, 1979.

      The cause was argued before Lowe, Liss and Weant, JJ.

      Martha Weisheit, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Deborah K. Handel, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Tim Doory, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

— sufficiency of certified conviction to revoke probation —

This is an appeal of a revocation of probation in the Criminal Court of Baltimore, the evidence for which consisted solely of a certified docket entry showing appellant’s subsequent criminal conviction as evidence that he had violated a condition of his probation that he would obey all laws. Relying primarily upon Kern v. State, 521 P.2d 412 (Okla. Crim. 1974), appellant contends that proof of a conviction that has been appealed and thus is not yet final, may not serve as the sole basis for finding a violation of probation, citing Stoner v. State, 566 P.2d 142 (Okla. Crim. 1977), and Harris v. State, 331 S.W.2d 941 (Tex. Crim. 1960), as well as State ex rel. Roberts v. Cochran, 140 So. 2d 597, 599-600 (Fla. 1962), for support.

Quoting from State v. Roberson, 327 A.2d 556 (Conn. 1973), the State convincingly points out that the majority of jurisdictions hold that either proof of a conviction or proof of the commission of acts constituting a crime is sufficient to support an order of revocation. We are convinced that although Maryland has not reported its alignment with the majority in that regard, it is the better practice and has been adhered to, if not acknowledged until now. See, e.g., Brown v. State, 4 Md. App. 623 (1968). A judgment of conviction despite its appealability, provides, at the very least, a strong permissible inference that a probationer has not obeyed all laws and is a sufficient circumstance “to satisfy the conscience of the court of the truth of the violation.” Knight v. State, 7 Md. App. 313, 318 (1969). All that is required as the standard of proof to support a revocation is that the evidence and the facts be such as “ ‘to reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation.’ ” Scott v. State, 238 Md. 265, 272 (1965), quoting Manning v. United States, 161 F.2d 827, 829 (5th Cir. 1947). Stated otherwise by the same Court, probation being a matter of grace,

“... may be ended, if the court is reasonably persuaded, by knowledge of facts, even if obtained more informally than the rules of evidence would permit it to be obtained in a trial, that it should be.” Id. at 275.

Our conclusion is also strongly supported by the facts in Scott, supra. Scott was acquitted by a jury; yet the judge revoked his probation because he was convinced by evidence which he had ruled inadmissible in the trial that Scott had committed the crime. If the fact of acquittal upon evidentiary suppression does not preclude revocation, we have no difficulty in concluding that when evidence is sufficient to permit a jury in one case to determine by the highest standard of proof that an accused has committed a crime, its official conclusion certified to the revocation hearing judge is sufficient prima facie to satisfy the lesser standard of reasonable persuasion, that the condition of legal obedience has been violated. The evidence was sufficient to justify revocation. The judge did not abuse his discretion (Edwardsen v. State, 220 Md. 82, 88 (1959)), in so concluding, based on the knowledge of a conviction, although not yet final, placed in evidence before him.

— effect of reversal of the conviction upon which revocation is founded —

Such holding, however, does not contemplate the complexity of the problem that arises when the conviction upon which the revocation is based is reversed on appeal. That is precisely what occurred in this case on March 7,1979, eight months after appellant’s probation had been revoked by Judge Martin B. Greenfeld on June 21, 1978.

The State would have us? decline to consider that complicating factor because we are technically reviewing the action of the trial court and, since the subsequent reversal was not before Judge Greenfeld, it does not form a part of the record for this appeal. The State points out that our reversal itself is in jeopardy since the Court of Appeals has issued a writ of certiorari to review our judgment and that in any case appellant may, upon post conviction or habeas corpus, raise the issue of the impact of the appellate reversal, which would provide the State the opportunity to prove the violation through factual evidence of the criminal violation without regard to the conviction or its reversal.

We are loath to obscure the obvious common sense recognition of our own cases by the judicial fiction that appellant must evidentiarily prove this in a nisi prius proceeding before we will acknowledge them, and prefer to exercise our discretion in judicially noticing them, Christopher v. Sisk, 133 Md. 48, 50 (1918); In Re Appeal No. 504, 24 Md. App. 715, 727 (1975); but the result we reach is similar to that sought by the State, though by a somewhat different route.

The Roberson case, relied upon by the State, indicates that a formula applies for reversals of convictions upon which revocation is founded:

“If revocation is based on a finding of conduct, then a reversal of a conviction resulting from the conduct ordinarily does not affect the revocation; but if conviction is the sole ground for revocation and the conviction is reversed, then the basis for the revocation no longer exists.” 327 A.2d at 559.

We need not look to foreign jurisdictions for support of so reasonable a conclusion. In Brown, supra, we reached the same result.

“We think the principle of Burgett [v. Texas, 389 U.S. 109 (1967)] is such that if appellant’s shoplifting conviction were unconstitutionally obtained, and the sole reason for the revocation of her probation was the fact of that conviction, then the conviction cannot of itself provide a proper basis upon which to revoke the previous grant of probation.” 4 Md. App. at 628.

A reversal indicates one of two things, either the probationer was not guilty of having subsequently broken the law, or (if remanded for retrial) may not be guilty if properly tried. The latter is what occurred in the case before us. The predicate that satisfied the revoking judge in this case was the beyond a reasonable doubt finding by other judicial factfinders that appellant had broken the law. The appellate opinion filed (and published) decided that the jury in that case had not been properly apprised of the manner in which the beyond the reasonable doubt standard of guilt should have been apprised and “that the error may have contributed to the guilty verdict returned against the appellant.” Hutchinson v. State, 41 Md. App. 569, 578 (1979).

A revoking judge may rely on the recorded conviction of another judicial factfinder that a probationer violated the law, but when the foundation for the conviction relied upon falls, so must the judicial structure built upon it. See Brown, supra, and see People v. Lynn, 271 Cal. App. 2d 670, 76 Cal. Rptr. 801, 803 (1969); State ex rel. Roberts v. Cochran, supra, 140 So.2d at 599-600; State v. Blackwelder, 263 N.C. 96, 138 S.E.2d 787, 789 (1964); Clay v. Wainwright, 470 F.2d 478, 481 (5th Cir. 1972). Obviously this is not true unless the fact of conviction was the sole basis for the revocation order. If facts were before the revoking judge sufficient reasonably to persuade him that the probationer had not obeyed the law, the revocation would stand with or without a conviction originally, Scott v. State, supra, or reversal subsequently, Brown v. State, supra.

In light of this result it is unnecessary to address the third question raised by appellant but we will note his fourth (that he should have been credited with accrued earned “good time” during his earlier incarceration) is without merit. Such credit is a matter for the Department of Public Safety and Correctional Services, not the court. Bartholomey v. State, 267 Md. 175, 188 (1972).

Judgment reversed.

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

      . Just as the State may rely on a conviction as valid for purposes of appeal until reversed, so may the appellant rely upon his reversal as valid in this case unless and until that is declared to have been in error by the Court of Appeals.

      . The post conviction procedure or habeas corpus route suggested as an available alternative by the State is obviously preferable to the more cumbersome, time consuming and expensive appellate route; however, the issues never before having been decided by an appellate court place this case in a unique posture. Furthermore, while the post conviction route may be preferable, we can hardly say the appellate route is improper.

      . Significantly, the State provided no authority to the contrary nor did it argue thus.


author: Couch, J.,

text:
    PHYLLIS POLLOKOFF et al. v. MARYLAND NATIONAL BANK
    [No. 187,
    September Term, 1979.]

      Decided November 13, 1979.

    The cause was argued before Morton, Couch and Weant, JJ.

      Sheldon H. Braiterman, with whom was James D. Johnson on the brief, for appellants.

      William J. Evans for appellee.
   Couch, J.,

delivered the opinion of the Court.

The District Court of Maryland has original jurisdiction in actions in contract or tort where the amount claimed does not exceed $5,000.00. For such actions where the amount claimed is at least $2,500.00, but below $5,000.00, the District Court and Circuit Court have concurrent jurisdiction at the election of the plaintiff. Annotated Code of Maryland, Cts. & Jud. Proc., §§ 4-401 and 4-402. Thus it would appear that a circuit court, or other trial court having general jurisdiction, has no original jurisdiction to try civil cases where the amount involved is less than $2,500.00. It is these jurisdictional provisions which have given rise to this appeal.

Appellants, Phyllis and Robert Pollokoff, opened a Premium Passbook account with Maryland National Bank, appellee, said account having a deposit term of five years with a maturity date of March 23, 1978. It appears that any funds in the account after the maturity date were to be either withdrawn or put in a regular passbook account. Appellants had funds in the premium account on March 23, 1978 but did not transfer these funds to a regular account, nor withdraw same, until May 19, 1978. Appellants requested the interest which had accrued from March 23, 1978 to May 19, 1978, which was denied by appellee. Thereafter, appellants sued appellee in the Superior Court of Baltimore City, on their own behalf and on behalf of all other persons similarly situated, for the accrued interest. Appellee responded to this action with a motion raising preliminary objection based on lack of jurisdiction inasmuch as the amount in controversy was below the monetary jurisdiction of the Superior Court so far as appellants were concerned and jurisdiction could not be obtained by the aggregation of claims of all members of the class similarly situated as appellants. Appellee’s motion was subsequently granted, and this appeal ensued.

The sole issue before us is:

“Under Maryland Rule 209, can the claims of individual class members to a class action suit brought in the Superior Court be aggregated so as to meet the Court’s $2500 jurisdictional amount?”

Maryland Rule 209 a provides:

“When there is a question of law or fact common to persons of a numerous class whose joinder is impractical, one or more of them whose claims or defenses are representative of the claims or defenses or all and who will fairly and adequately protect the interests of all may sue or be sued on behalf of all.”

As noted above, the Superior Court of Baltimore City has no jurisdiction over civil cases where the amount involved is $2,500.00 or less, at least insofar as original jurisdiction is concerned. Thus appellants, as individuals, would have to have a claim involving more than $2,500.00 before invoking the jurisdiction of the Superior Court. The record reveals their claim only involves $27.62, therefore they, as individuals, could not bring their action in the Superior Court. In obvious recognition of this fact, appellants brought a “class action” and argue that by aggregating the claims of all the members of the class the jurisdictional amount of $2,500.00 is met. Appellee successfully countered by arguing that the claims could not be aggregated to overcome the jurisdictional hurdle.

The parties agree, and our research confirms, that this precise question has not been previously considered by an appellate court in Maryland and thus this is a case of first impression in this state. Appellants do cite Sun Cab Co. v. Cloud, 162 Md. 419, 159 A. 922 (1932), as support for their argument. Our reading of that case, however, persuades us to the contrary. Sun Cab involved an action in equity for an injunction restraining a referendum on a recently passed legislative act; the complainants (taxpayers) brought the action on their behalf and other taxpayers. Appellant intervened and demurred to the bill raising, in part, the right of complainants as taxpayers to relief because they showed no special injury distinct and peculiar to themselves. The trial court overruled the demurrer and the Court of Appeals, in affirming this ruling, stated: Id. at 427. We believe this case is factually inapposite here. In the instant case we are not dealing with a taxpayer’s suit nor a case where appellants can get no relief.

“The property loss to them, or the loss of civil rights, which according to our rules must be established as a foundation for the interposition of a court of equity, may be small, when apportioned among them. Probably the loss to one taxpayer in any such proceeding seldom amounts to twenty dollars, the minimum of the debt or damage which a court of equity may consider. Code, art. 16, sec. 109; Kenneweg v. Allegany County, 102 Md. 119, 62 A. 249, 250. But, when a suit is instituted by one or more taxpayers in representation of all, the case is quite different. The amount involved and sought to be protected is then the total amount of loss to taxpayers, or the total amount which may be wrongfully expended. In Kenneweg v. Allegany County, supra, cited against the maintenance of the present suit, a single taxpayer was the complainant, and, as the court observed, he ‘does not sue in behalf of himself and other taxpayers who may be similarly situated, * * * but he sues alone, in his own name and his own behalf.’ His loss alone was too small to come within the statutory limitation, the court held. But a bill filed in the name of one or more of the taxable inhabitants for themselves and all others similarly situated the court should regard as ‘in the nature of a public proceeding to test the validity of the corporate acts sought to be impeached and deal with and control it accordingly.’ 4 Dillon, Municipal Corporations (5th Ed.), sec. 1587; Kelly, Piet & Co. v. Baltimore, 53 Md. 134, 141. Therefore the conclusion of the court is that the taxpayers’ suit may be maintained in this instance.”

It has been stated many times that since Maryland’s Rules of Procedure were patterned after the Federal Rules of Procedure, federal cases interpreting comparable rules, while not binding, are indeed persuasive authority. The Supreme Court has had two occasions to deal with the comparable federal rule on class actions — Rule 23 (b) (3). In Snyder v. Harris, 394 U.S. 332 (1969), and Zahn v. International Paper Company, 414 U.S. 291 (1973), it was flatly held that separate claims of class members may not be aggregated to meet monetary jurisdictional requirements where diversity of citizenship was the basis for jurisdiction. While appellants argue in their brief that if Md. Rule 209 does not permit the filing of class actions in a court of general trial jurisdiction because of the prohibition of aggregation claims to meet the monetary jurisdiction of the court, then effectively the rule means nothing. This is so, appellants argue, because the District Court is incapable, administratively, of handling a class action. Whatever merit this argument may have, we believe this is the wrong forum to give relief. In our view appellants should seek relief — if relief is justified — (see Johnson v. Chrysler Credit Corp., 26 Md. App. 122, 337 A.2d 210 (1975)) from the Legislature or from the Court of Appeals through a rule change.

We hold, therefore, that in order to satisfy the jurisdictional requirements of the Maryland Code, Cts. & Jud. Proc., §§ 4-401 and 4-402, a plaintiff may not aggregate the claims of all other members of a class, similarly situated.

Judgment affirmed.

Costs to be paid by appellants.

      . “§ 4-401. Exclusive original jurisdiction.

      Except as provided in § 4-402, and subject to the venue provisions of Title 6, the District Court has exclusive original jurisdiction in: (1) An action in contract or tort if the debt or damages claimed do not exceed $5,000; ....”
      "§ 4-402. Exceptions.

      (a) Equity cases. — Except as provided in § 4-401, the District Court does not have equity jurisdiction.
      (d) Concurrent jurisdiction cases. — Except in a case under paragraph (2), (4), (5), or (6) of § 4-401, the plaintiff may elect to file suit in the District Court or in a trial court of general jurisdiction, if the amount in controversy exceeds $2,500.”


text:
    FRANK C. HOHMAN v. THE A. S. ABELL COMPANY
    [No. 238,
    September Term, 1979.]

      Decided November 13, 1979.

    The cause was argued before Gilbert, C. J. and Couch and MacDaniel, JJ.

      Frank H. Newell, III, for appellant.

      James K. Archibald, with whom were Venable, Baetjer & Howard on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

The question before the Court in this appeal is whether the trial court erred in directing a verdict in favor of The A. S. Abell Company, defendant below and appellee here, in a civil suit filed against it by Frank C. Hohman, plaintiff below and appellant here, for damages resulting from an allegedly libelous statement contained in an article printed in appellee’s newspaper, The Sun.

Prior to Frank C. Hohman’s (appellant) retirement on December 1, 1975, he was a major in the Baltimore County Police Department with over 29 years of service. Appellee’s morning newspaper, The Sun, began publishing a series of articles on August 24, 1975 dealing with towing operations in Baltimore County. The final article, published on January 22, 1976, generated the present dispute. Considering the nature of this case, we shall set forth the entire article below:

“Baltimore county police were lax in their regulation of towing firms, according to a 3-1/2-month internal investigation of charges of favoritism in the county’s police-controlled towing business.
The formal investigation report cites for ‘nonfeasance’ an unspecified number of unnamed high-ranking officers no longer with the department.
Although the report finds no evidence of criminal misconduct by current or former policemen, it says ‘subjective evidence would indicate that police officials had not fully exercised their administrative abilities’ in overseeing those firms licensed to take police calls to tow disabled vehicles.
Specifically, the report concludes that, in the past, towing license applications were approved or disapproved without written justification, official records of towing licensees were poor or non-existent and the tow truck operators were seldom if ever inspected for compliance with the law.
The nine-page report, dated January 7 and signed by Joseph R. Gallen, the police chief, has not yet been made public, but copies have been distributed within the department and sent to the county executive and state’s attorney.
Sandra A. O’Connor, the state’s attorney, will use the findings in her own probe of the department and the towing industry. She has said this investigation will be a top priority of the new grand jury sworn in last week.
The report is the first formal confirmation of articles in The Sun as early as August stating that a'politically well-connected Essex garage owner had established the largest towing business in that area, apparently because county police had limited his competition by control of the licensing procedure and had gerrymandered his authorized zone of operations to include some of the county’s most heavily traveled roads.
The garage owner, William E. Eiler, who lost his towing license in the ensuing investigation, is a friend of several once-powerful Democratic politicians and former police officers, including Ellison W. Ensor, the former chief.
Mr. Ensor retired September 1 amid the investigation into corruption charges within the 1,180-member police force.
Mr. Gallen was then named acting chief by Theodore G. Venetoulis, the county executive, with orders to pursue the probe. Subsequently, Mr. Gallen received the permanent appointment as chief.
Several high-ranking officers closely identified with the former chief also have subsequently retired. They include:
*Col. Gordon C. Lee, the former operations officer, who had custody of the licensing files for towing operators.
*Maj. Louis G. Roemer, the former chief of detectives and also a friend of Mr. Eiler.
*Maj. Frank Hohman, former head of the Traffic Division, who kept the complaint files on towing operators.
*Capt. Charles L. Krach, former commander of the Eastern Patrol Bureau, who was responsible for drawing the towing zone boundaries in the Essex area.
These four officers, as well as Chief Ensor, were among those charged with ‘nonfeasance,’ according to a reliable source.
Colonel Lee and Major Hohman were named in one section of the report which described the ‘poor record-keeping system’ within the department relating to towing operators.
Police investigators also faulted the county Department of Permits and Licenses for ‘sloppy record keeping’ relating to towing and suggested that ‘effective internal management procedures be adopted.’
The report also referred to one unidentified towing operator who ‘may have committed several violations of law’ other than the county towing statute and who is under investigation for possible criminal indictment by the state’s attorney.
At the conclusion of the report, Chief Gallen spelled out a new licensing procedure he has implemented, which will include at least three inspections a year of the county’s approximately 31 police-licensed towing companies.”

Appellant, at trial, claimed that this article falsely accused him of having been charged with a crime (nonfeasance) and that he had been damaged in his good name and reputation, particularly his reputation as a former law enforcement officer and as a former county employee of honesty and integrity.

Appellee successfully maintained below, that the article was not defamatory and that, even if it were, there was no evidence of actual malice sufficient for the jury to consider whether appellee’s constitutional privilege had been overcome. New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L.Ed.2d 686 (1964).

The trial judge, in granting appellee’s motion for a directed verdict at the close of all the evidence, concluded that the article was not defamatory since, in the context of the entire article, the allegedly libelous paragraph, “These four officers (referring to appellant and three others), as well as Chief Ensor, were among those charged with ‘nonfeasance,’ according to a reliable source”, did not charge appellant with a crime. The trial court arrived at this conclusion based upon two statements in the article which precede the offending paragraph. Those statements are as follows:

“Although the report finds no evidence of criminal misconduct by current or former policemen...”
“Sandra A. O’Connor, the state’s attorney, will use the findings in her own probe of the department and the towing industry. She has said this investigation will be a top priority of the new grand jury sworn in last week.”

The threshold question of whether an article is defamatory is one of law to be determined by the court. The trial court correctly considered the article in its entirety, Heath v. Hughes, 233 Md. 458, 464, 197 A.2d 104 (1964); see Bowie v. Evening News, 148 Md. 569, 574, 129 A. 797 (1925); Flaks v. Clark, 143 Md. 377, 382, 122 A. 383 (1923). The Court of Appeals in Flaks v. Clark, supra, stated well the rule applied by the trial court:

“... [T]he libelous character of the article must be determined from the whole article published....
Words may have different meanings according to the connection in which they are used, and their context may confine them to but a single and innocent construction. It would be a dangerous doctrine, and tend to promote grave injustice, to permit words to be withdrawn from others with which they are connected and used by the publisher, and then impute to them a meaning not warranted by the whole publication.” [Emphasis in original.]

Id. at 382. The two preceding statements in the article, which relate that the investigative report found no evidence of criminal misconduct by former policemen and that the state’s attorney “will use” the findings from the report in her own probe, could be viewed as negating an inference that appellee was ascribing to appellant the commission of a crime. Nevertheless, we disagree with the trial court that, as a matter of law, the article was not defamatory although we conclude the case was properly withheld from the jury. We say this because it could be inferred that the author of the article was déaling with two separate sources: one, Chief Gallen’s report, and another being “a reliable source”. Thus, while the report itself may have stated there was no evidence of criminal misconduct, it could be inferred that a “reliable source” said appellant and three others were “charged with nonfeasance”, an admitted crime. In our view, keeping in mind the standard to be used by a trial judge in ruling on a motion for a directed verdict, reasonable readers of the article could have concluded appellant was said to have been charged with the commission of a crime. The trial judge, it seems to us, recognized his function when he stated in his oral opinion granting the motion:

“If there were legally sufficient evidence that this publication charged the plaintiff with the commission of a crime in the sense that it’s argued by Major Hohman, then I’d let the jury consider damages. If the statement was reasonably capable of two different meanings as Major Hohman’s counsel argued, I should let the jury decide whether it’s defamatory or not. If the statement is capable of two different meanings.”

Nevertheless, we believe the trial judge was wrong when he then concluded the statement was capable of only one meaning. Normally this conclusion on our part would require reversal, but not here because we do not believe there was evidence of actual malice, an element necessary to be shown under these circumstances.

Malice

Appellee argues that the lack of sufficient evidence of actual malice would also preclude submission of the issue of whether the newspaper’s constitutional privilege had been overcome. The trial court did not base its decision to grant the motion for directed verdict specifically upon any failure on appellant’s part to produce evidence of actual malice. The trial.judge stated:

“I don’t need to really base my ruling on that argument because I find that the evidence is legally insufficient to meet the burden of proof on the plaintiff to go to the jury.”

Our recent decision in Delia v. Berkey, 41 Md. App. 47, 395 A.2d 1189 (1978), denominates appellant a public official since the offending statement appears in a newspaper article which mentions him in his capacity as a Baltimore County police officer. Id. at 51. Judge Liss, writing for this Court in Delia v. Berkey; supra, engaged in a thorough examination of the standard of proof of malice required of a public official under New York Times v. Sullivan, supra:

“Accordingly, the test applied in determining the governing legal principles in this case [involving a police officer acting within the scope of his law enforcement function] is the standard enunciated by the Supreme Court of the United States in New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964), which held that public officials may sue for libel only when they can demonstrate that the alleged libel was made with ‘actual malice,’ which is defined to mean publication of false statements with actual knowledge of their falsity or with reckless disregard for their truth or falsity. In Garrison v. Louisiana, 379 U.S. 64, 74, 85 S. Ct. 209 (1964), the Court refined its standard, stating that ‘only those false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions.’
New York Times, supra, and its progeny impose a heavy burden on the public official or public figure who seeks redress for an alleged defamation. The defamed public official or public figure must prove not only that the circulation was false but that it was knowingly so or was circulated with reckless disregard for truth or falsity. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S. Ct. 1029 (1975). The procedural effect of New York Times was a shifting of the burden of proof in cases involving alleged defamation of public officials or public figures. We said in Kapiloff v. Dunn, 27 Md. App. 514, 530, 343 A.2d 251 (1975):
In order to protect the interest of the First Amendment in the free dissemination of information concerning the conduct of a public official or public figure, the Supreme Court shifted that burden. It is now incumbent upon the public official or public figure plaintiff to prove that the statements concerning his conduct were false, and that they were published with actual malice.
The New York Times or the so called ‘constitutional malice’ doctrine focuses primarily on the element of scienter. Knowing falsity or reckless disregard for truth involves proof of a ‘high degree of awareness of... probable falsity ...,’ Garrison v. Louisiana, supra, such that the defendant ‘entertained serious doubts as to the truth of his public action.’ St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323 (1968). Accord, Marchesi v. Franchino, 283 Md. 131, 387 A.2d 1129 (1978)."

Id. at 51-53. To prove “reckless disregard”, as required by New York Times v. Sullivan, supra, appellant had to adduce sufficient evidence to permit the conclusion that appellee in fact entertained serious doubts as to the truth of the publication. See St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 20 L.Ed.2d 262 (1968), where the Court stated:

“These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.” [Emphasis added.]

There is simply no evidence that appellee published the article with “knowing falsity” or “reckless disregard of the truth”.

Our review of the record persuades us that appellant failed to meet the heavy burden placed upon him by New York Times v. Sullivan, supra, in producing sufficient evidence of actual malice to take the matter to the jury.

The Sun reporter’s testimony negates any inference that he entertained any serious doubts about the truth of the matters treated in the article, particularly the allegedly defamatory statement. The reporter included the name of appellant among those to whom the nine-page report referred when it stated, “There was evidence of non-feasance by ranking police officers who are no longer with the police department”, for the following reasons: the language of the report, i.e., “ranking police officers”; the reference made by the report to the poor record-keeping within the police department, and the confirmation by a “reliable source” that the names that were to appear in the article were the “ranking officers” mentioned in the report. The investigative report itself did not give the names of the officers, so the reporter resorted to the sources noted previously to garner the information for the January 22, 1976 article. The reporter’s recitation of his investigation to determine the names of those “ranking police officers” contains no hint, nor is there any other evidence, that appellee or its reporter entertained any doubts, much less serious doubts, as to the truth of the publication. Thus we are led to the inescapable conclusion that appellant failed to offer evidence of actual malice, and the motion for directed verdict was properly granted upon this ground.

Judgment affirmed.

Costs to be paid by appellant.

      . Appellant proceeded below upon the theory that he was a “public figure’’ within the meaning of New York Times v. Sullivan, supra.

      . Certiorari to Court of Appeals granted March 28, 1979.


author: MacDaniel, J.,

text:
    VERGIE M. LAPELOSA, Ind. etc. v. KENNETH CRUZE
    [No. 239,
    September Term, 1979.]

      Decided November 13, 1979.

      The cause was argued before Gilbert, C. J., and Couch and MacDaniel, JJ.

      John J. Sellinger, with whom was George W. Shadoan on the brief, for appellant.

      William A, Ehrmantraut, with whom were Donahue, Ehrmantraut & Montedonico on the brief, for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

On April 20, 1977, Richard D. Lapelosa and Vergie Marie Lapelosa, his wife, filed an action in the Circuit Court for Prince George’s County (Judge Audrey E. Melbourne, presiding) against Dr. Kenneth Cruze, alleging medical negligence in the care and treatment of Richard Lapelosa. Specifically, they alleged in the various counts: (1) negligence in Dr. Cruze’s failure to perform surgery on Mr. Lapelosa prior to April 20,1974, when Mr. Lapelosa suffered a cerebral stroke; (2) negligence in the performance of the May 9, 1974, surgery without first obtaining a recent diagnostic dye study and without obtaining informed consent to the surgery; and (3) damages for loss of consortium.

Interrogatories were propounded by Richard Lapelosa to Dr. Cruze and also by Dr. Cruze to Richard Lapelosa. They were answered by the respective parties. A deposition was also taken of Dr. Cruze.

On June 18, 1978, prior to trial, Richard Lapelosa died of a heart attack. There is no claim that his death was related to the treatment rendered by the appellee, and, therefore, no issue of wrongful death is involved in this case. Thereafter, Vergie Lapelosa, in her capacity as personal representative of her husband’s estate, was substituted for Richard Lapelosa in this action.

Prior to the trial, the appellants filed a Motion in Limine, asking the court to sign an order excluding from the evidence at the trial any testimony by the appellee concerning: (1) any statement by the deceased in which he allegedly refused, or indicated an unwillingness, to undergo surgery; and (2) any statement by the deceased in which he allegedly refused, or indicated an unwillingness, to submit to a diagnostic dye study prior to surgery on May 9,1974. The appellants argued ■that the appellee was barred from so testifying by the Maryland “Dead Man’s” Statute. The trial judge denied the motion in a Memorandum and Order dated October 2, 1978. She reasoned that the use of discovery against Dr. Cruze by the deceased constituted a waiver under the statute with respect to the controversial testimony.

When the trial began, the appellants called Dr. Cruze as an adverse witness, and, in response to their questioning, Dr. Cruze testified that Mr. Lapelosa had refused surgery from June 1973 to April 1974. He also testified that, after surgery finally had been scheduled, Mr. Lapelosa still chose not to undergo another diagnostic dye study prior to surgery. At no time during the trial did the appellants renew their motion to have the above evidence excluded, nor did they record an objection to the prior ruling on the motion in limine.

When Mrs. Lapelosa took the witness stand, she was asked by her attorney, “In your discussion with your husband, did he express any emotion or feeling concerning the office visit?” The question referred to alleged recommendations by Dr. Graze concerning surgery. The appellee objected on the grounds that the answer would be hearsay. The appellants’ attorney then proffered that the testimony would be as follows:

“MR. SHADOAN: Mr. Sellinger is more familiar with it than I, but it is my understanding that Mr. Lapelosa indeed, as Dr. Craze’s notes indicate, did feel his nerves were working on him. He was concerned. He was concerned because he could not go back to work until the surgery was undertaken, and he wanted to go back to work. And he was quite concerned about this. He was upset that he was not able to return to work until the surgery took place. He was sitting around the house waiting for the opportunity for the surgery to take place, concerned that he could not return to work until it was done. That is my understanding of the substance of what the testimony would be.
Is that accurate?
MR. SELLINGER: That is certainly correct on that point.”

The attorney argued that such testimony fell under the “state of mind” exception to the hearsay rule. The trial judge disagreed and sustained the objection. She made it clear that her ruling was based solely on the unreliability of the testimony under the hearsay rule and not on the “Dead Man’s” Statute, which, she felt, had been waived.

At the conclusion of all of the evidence the trial judge gave the following general instruction on contributory negligence:

“To establish the defense of contributory negligence, the burden is on the defendant to prove by a preponderance of the evidence that the plaintiff was negligent and that such negligence contributed in some degree as a proximate cause of the injuries to the plaintiff----
Contributory negligence is negligence on the part of the person injured, which, combining in some degree with the negligence of another proximately causes the injury of which he complains. If you find that the plaintiff was guilty of such negligence, you should find for the defendant, because one who is guilty of contributory negligence may not recover from another for the injuries sustained, even though the negligence of that other was also a cause of the injury.”

The jury returned a verdict in favor of the appellee, and the trial judge denied the appellants’ Motion for a New Trial. On appeal, Mrs. Lapelosa alleges a number of errors in the conduct of the trial below.

I

The appellants argue, first, that their pre-trial deposition of, and interrogatories to, Dr. Cruze did not constitute a waiver of their right, under the “Dead Man’s” Statute, to have excluded from the trial the controversial testimony by Dr. Cruze concerning statements of Mr. Lapelosa. They contend that the trial judge should not have admitted that testimony into evidence. We find, however, that we need not reach this issue because it was not properly preserved for appellate review.

The appellants initially raised the issue of the admissibility of Dr. Cruze’s testimony in a pre-trial Motion in Limine, which was'denied. At trial, they did not voice any objection to such testimony by Dr. Cruze, and, in fact, their counsel called Dr. Cruze to testify and asked him questions regarding statements made by the deceased.

Maryland Rule 1085 requires that, normally, on appeal, we not decide “any point or question which does not plainly appear by the record to have been tried and decided by the lower court ..Thus, for a question of admissibility of evidence to be preserved for appellate review, the testimony must generally have been objected to in the court below. See Davidson v. State, 18 Md. App. 61, 72 (1973); Ragler v. State, 18 Md. App. 671, 673 (1973).

There is no exception to the above rule, which requires the recording of an objection in the trial below, where the question of admissibility of evidence has previously been raised in a pre-trial motion in limine.

In Ory v. Libersky, 40 Md. App. 151, 164 (1978), Judge Moore, speaking for this Court, stated:

“ ... there is substantial authority for the proposition that the denial of a motion in limine cannot in and of itself constitute reversible error.”

He, therefore, held that denial of the appellant’s motions in limine was not reversible error. The reason for this rule was made clear in Robinson v. State, 309 N.E.2d 833, footnote 17 (1974), when the Court of Appeals of Indiana, Second District, defined and explained motions in limine as follows:

“17. ‘Literally, “in limine” means “on the threshold; at the outset.” Ballentine, Ballentine’s Law Dictionary 628 (1969). See also 2 Burrill, Law Dictionary 55 (1871) and Callaghan, Cylopedic Law Dictionary 557 (1940). A “motion in limine” is a term used to describe a written motion which is usually made before or after the beginning of a jury trial for a protective order against prejudicial questions and statements. Its purpose has been succinctly expressed in Bridges v. City of Richardson (1962), 163 Tex. 292, 354 S.W.2d 366, 367:
“The purpose in filing a motion in limine to suppress evidence or to instruct opposing counsel not to offer it is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury with respect to matters which have no proper bearing on the issues in the case or on the rights of the parties to the suit. It is the prejudicial effect of the questions asked or statements made in connection with the offer of the evidence, not the prejudicial effect of the evidence itself, which a motion in limine is intended to reach ....” ’ Burrus v. Silhavy (1973), Ind.App., 293 N.E.2d 794, 796, 35 Ind.Dec. 541, 544.” (Emphasis added.)

In Reading v. Ferguson, 501 S.W.2d 717, 722-23 (1973), the Court of Civil Appeals of Texas elaborated further:

“[a motion in limine] also serves the useful purpose or raising .and pointing out ‘before trial, certain evidentiary rulings that the Court may be called upon to make. By its very nature, when properly drawn, its grant cannot be error. It is not a ruling on evidence. It adds a procedural step prior to the offer of evidence.
... In Hudson v. Smith, 391 S.W.2d 441 (Houston, Tex.Civ.App., 1965, ref., n. r. e.) at page 449 the court said: ‘Granting or denying a motion in limine does not preserve error.’ So also in Gulf States Abrasive Manufacturing, Inc. v. Oertel, 489 S.W.2d 184 (Houston, Tex.Civ.App., 1st Dist., 1972, ref., n. r. e.) at page 187, which states: ‘Error is not preserved by the mere showing of the granting or denying of a motion in limine.’ See also State v. Wheeler, 390 S.W.2d 339 (Beaumont, Tex.Civ.App., 1965, ref., n. r. e.) and Aetna Casualty and Surety Company v. Finney, 346 S.W.2d 917 (Texarkana, Tex.Civ.App., 1961, ref., n. r. e.).”

Thus, in Biard Oil Co. v. St. Louis Southwestern Railway Co., 522 S.W.2d 588, 590 (1975), the Court of Civil Appeals of Texas said:

‘‘[1-3] It is never error for a trial court to overrule a motion in limine which seeks to preclude the introduction of evidence. The party opposing the admission of certain evidence still has the burden of interposing a specific objection at the time the evidence is tendered and appeal from its admission over his objection.” (Citations omitted.)

We hold, therefore, that the appellants, by their failure to record a specific objection and by their questioning of Dr. Cruze at trial, waived the issue of the admissibility of the doctor’s testimony concerning controversial statements by the deceased.

II

Next, the appellants cite as error the trial judge’s refusal to allow Mrs. Lapelosa to testify concerning statements allegedly made to her by Mr. Lapelosa regarding his feelings about the prospective surgery. With respect to the appellants’ argument that the controversial statements fell under the “state of mind” exception to the hearsay rule, the judge said:

“ ... it appears to the Court that these statements are not being offered to prove state of mind. The state of mind of Mr. Lapelosa is not an issue in this case. They are being offered, however, to prove the negligence of the defendant.”

The judge felt, in addition, that the proffered statements were unreliable. She said:

“ ... it is very easy to perceive that Mr. Lapelosa could very well have been told by the doctor to have surgery, and he could very well have told his wife that he was anxious to have surgery and these additional tests; but that he in fact did not want to go through with them. This was a way that he could prevent his wife from further bugging him or harassing him about the subject.”

We agree with the trial judge’s ruling that the proffered testimony did not fall under the “state of mind” exception to the hearsay rule.

Statements of a declarant’s state of mind, or emotion, are admissible only if they were originally made under circumstances of apparent sincerity. See Md. Paper Products Co. v. Judson, 215 Md. 577, 590 (1958); McCormick on Evidence, § 294. As the trial judge correctly pointed out, the circumstances of any statements by the decedent concerning his feelings about surgery do not necessarily assure reliability of those statements. Therefore, we hold that the trial judge correctly excluded the proffered controversial testimony of Mrs. Lapelosa.

Ill

The appellants also argue that they were entitled to a directed verdict on the issue of informed consent. They contend that Mr. Lapelosa would not have declined to undergo another diagnostic dye study had he been properly informed by Dr. Cruze concerning the benefits to be thereby obtained. In addition, they argue that had Mr. Lapelosa been informed of the increased risks of surgery without the guidance of a recent dye study, he would not have agreed to the May 9, 1974, surgery. We do not agree with the appellants’ contention.

Regarding the doctrine of informed consent, the Court of Appeals said in Sard v. Hardy, 281 Md. 432, 439-40 (1977):

“Simply stated, the doctrine of informed consent imposes on a physician, before he subjects his patient to medical treatment, the duty to explain the procedure to the patient and to warn him of any material risks or dangers inherent in or collateral to the therapy, so as to enable the patient to make an intelligent and informed choice about whether or not to undergo such treatment. Salgo v. Leland Stanford Jr. Univ. Bd. of Trustees, 154 Cal. App.2d 560, 317 P.2d 170, 181 (1957); Bang v. Charles T. Miller Hospital, 251 Minn. 427, 88 N.W.2d 186, 190 (1958); Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis. 2d 1, 227 N.W.2d 647, 654 (1975).”

The Court adopted a standard of “reasonableness” in determining how much must be disclosed by a doctor to his patient. The Court said:

“We stress that a physician is not burdened with the duty of divulging all risks, but only those which are material to the intelligent decision of a reasonably prudent patient.” 281 Md. at 444.

The Court also noted:

“Finally, disclosure is not required where the risk is either known to the patient or is so obvious as to justify presumption of such knowledge, nor is the physician under a duty to discuss the relatively remote risks inherent in common procedures, when it is common knowledge that such risks inherent in the procedure are of very low incidence.” 281 Md. at 445.

As the Court of Appeals also noted in Sard v. Hardy, supra, the doctrine of informed consent also requires proof of proximate causation. The Court said:

“The rule is that a plaintiff cannot recover under the doctrine unless he can prove by a preponderance of the evidence that he would not have given his consent to the proposed procedure had full and adequate disclosure been made at the time consent was originally given. Karp v. Cooley, 493 F.2d 408, 422 (5th Cir.), cert. denied, 419 U.S. 845 (1974); Aiken v. Clary, 396 S.W.2d at 676; Wilkinson v. Vesey, 295 A.2d at 690.” 281 Md. at 448-49.

This requirement, the Court added,

“ ... is to be resolved by an objective test: whether a reasonable person in the patient’s position would have withheld consent to the surgery or therapy had all material risks been disclosed.” 281 Md. at 450.

With respect to a ruling on a motion for a directed verdict, the Court of Appeals said in Quality Disc. Tires v. Firestone Tire, 282 Md. 7, 11 (1978):

“- . . . a court is required to ‘assume the truth of all credible evidence in the case tending to sustain the contentions of the party against whom the verdict is directed as well as all inferences of fact reasonably and fairly deducible therefrom.’ Durante v. Braun, 263 Md. 685, 689, 284 A.2d 241 (1971). These facts and inferences must be viewed in the light most favorable to the party against whom the directed verdict is sought, that is, all conflicts must be resolved in his favor, and if ‘there is any legally relevant and competent evidence from which a rational mind can infer a fact at issue,’ the motion for a directed verdict must be denied, Yommer v. McKenzie, 255 Md. 220, 228, 257 A.2d 138 (1969). Accord, Beahm v. Shortall, 279 Md. 321, 341-343, 368 A.2d 1005 (1977); Levine v. Rendler, 272 Md. 1, 12, 320 A.2d 258 (1974).”

Applying the above law to the facts of the present case, we hold that the appellants clearly were not entitled to a directed verdict on the issue of informed consent. First, Dr. Cruze testified as follows concerning Mr. Lapelosa’s understanding of dye tests:

“Q ... Is it your recollection now that you did explain the purpose of the dye study ... ?
A ... he knew what a dye- study was, because we had done one, and I see no reason to explain to him the purpose, he knew what the purpose was when we did the first one. So, in that sense I didn’t.”

Later, Dr. Cruze added:

“This patient had already had a previous dye study. He knew. He heard the story. He heard about the complications and the possibilities of what we hoped to find. So for me to sit down and explain everything at that point, when he said that he really didn’t care to have one, would almost be redundant

We hold that this is sufficient evidence from which the jury could have concluded that the attendant risks of a dye study or of surgery without a dye study were known to Mr. Lapelosa and that, therefore, Dr. Cruze was not under a present duty so to inform his patient.

In addition, Dr. Harvey Ammerman testified that a dye study “was not indicated during that interim” before surgery on Mr. Lapelosa. From this, the jury could reasonably have inferred that the appellants had not met their burden of showing a causal connection between the failure of Dr. Cruze to have another dye study and the injuries allegedly suffered as a result of the subsequent surgery.

Therefore, for the reasons given above, the trial judge correctly refused to grant the appellants a directed verdict on the issue of informed consent.

IV

The appellants argue that, with respect to the issue of contributory negligence, either no jury instruction should have been given or a requested limited instruction should have been given instead of a general instruction. We disagree.

The appellants’ claim that no instruction on contributory negligence should have been given to the jury is frivolous. Obviously, any delay with respect to surgery caused by Mr. Lapelosa may have played a role in causing the injuries complained of.

With regard to a limited contributory negligence instruction, the appellants said in the court below:

“I would ask the Court to instruct the jury that there is no issue of contributory negligence with respect to any claim of negligence against the defendant because of his actions undertaken after 4-26-74, when the patient’s consent was secured. And they should clearly understand that if there is any issue of contributory negligence in the case, it only relates to the claims of the patient against the doctor for the doctor’s actions taken prior to April 26, 1974.”

We hold that, while some form of a limited contributory negligence instruction might have been appropriate, the requested instruction was improper.

In their case, the appellants alleged negligence on the part of Dr. Cruze even after consent to surgery had been obtained. They point, at least in part, to his failure to obtain a recent diagnostic dye study which, they contend, would have made the surgery safer. As a defense to this allegation, the appellee testified, as indicated in Section III above, that the dye study was skipped at the insistence of Mr. Lapelosa. Since this testimony amounted to evidence of possible contributory negligence by Mr. Lapelosa with respect to the surgery itself, the appellants were not entitled to a jury instruction limiting contributory negligence to the time prior to his consent to surgery. Therefore, we hold that the trial judge did not err in refusing to grant the requested instruction.

V

The appellants also contend that the trial judge abused her discretion in allowing the use of photographic slides as an aid to Dr. Craze’s testimony. This argument is completely without merit. A judge is given wide discretion in the conduct of a trial at which he presides. See Gerstein v. State, 10 Md. App. 322, cert. denied, 402 U.S. 1009 (1970), and the cases cited therein. In the present case we fail to see any abuse of this discretion.

VI

Finally, the appellants argue that the trial judge’s failure to instruct the jury to disregard two remarks made by counsel for the appellee in closing argument was reversible error. We disagree.

We note, first, that any complaint which the appellants may have about the first alleged improper remark was not preserved for appellate review. With respect to that remark, the appellants registered an objection but they did not seek a mistrial or ask that the jury be instructed to disregard the remark, as required under Maryland Rule 1085. See Feeney v. Dolan, 35 Md. App. 538, 553 (1977), and the cases cited therein.

The second alleged improper remark by the appellee’s counsel was as follows:

“Dr. Cruze is a practitioner in a very skilled speciality, vascular surgery. There are not a lot of them around. He has brought to your community, in fact, brought back to your community — because he was born and raised in Takoma Park, Maryland — his skill and training that he learned 3,000 miles away in the University of California at Los Angeles. I beg of you to show your confidence in his integrity and in his ability by bringing in a verdict in his favor, as a vote of confidence and a vote of “Thank you, Dr. Cruze, for giving us your talents to take care of us.”

The appellants argue that the trial judge’s refusal to instruct the jury to disregard the remark was an abuse of her discretion. We disagree.

As the Court of Appeals said in Wilhelm v. State, 272 Md. 404, 413 (1974):

“As a limitation upon the general scope of permissible closing argument this Court in Esterline v. State, 105 Md. 629, 66 A. 269 (1907), cautioned that counsel should not be permitted by the court, over proper objection, to state and comment upon facts not in evidence or to state what he could have proven. Persistence in such course of conduct may furnish good grounds for a new trial. The conduct of the trial must of necessity rest largely in the control and discretion of the presiding judge and an appellate court should in no case interfere with that judgment unless there has been an abuse of discretion by the trial judge of a character likely to have injured the complaining party. 105 Md. at 637, 66 A.2d at 272.”

In the present case, we do not feel that the statement complained of was likely to have misled or influenced the jury to the prejudice of the appellants. See Wilhelm v. State, supra at 415-17 and the cases cited therein. Therefore, we cannot say that the trial judge clearly abused her discretion in declining to make a cautionary instruction to the jury.

Judgment affirmed.

Costs to be paid by appellant.

      . Section 9-116 of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland provides:

        "§ 9-116. Dead man’s statute.

      A party to a proceeding by or against a personal representative, heir, devisee, distributee, or legatee as such, in which a judgment or decree may be rendered for or against them, or by or against an incompetent person, may not testify concerning any transaction with or statement made by the dead or incompetent person, personally or through an agent since dead, unless called to testify by the opposite party, or unless the testimony of the dead or incompetent person has been given already in evidence in the same proceeding concerning the same transaction or statement. (An. Code 1957, art. 35, § 3;1973,lstSp.Sess.,ch.2,§ 1; 1976, ch. 269.)”


author: Liss, J.,

text:
    THE JAMES GIBBONS COMPANY et al. v. SHIRLEY HESS
    [No. 254,
    September Term, 1979.]

      Decided November 13, 1979.

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

      JR. Roger Drechsler, with whom were Lord, Whip, Goughian & Green, P.A. on the brief, for appellants.

      Andrew Kahn, with whom was Jerome Blum on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

Grady Garland, an employee of the James F. Gibbons Company, the appellant herein, sustained an accidental injury on December 16, 1976 arising out of the course of his employment which resulted in his death. Shirley Hess filed a claim for dependency benefits on behalf of Angela A. and Grady Scott Garland, appellees, who are the illegitimate children of Mrs. Hess and Mr. Garland. After a hearing, the Workmen’s Compensation Commission filed an order in which it found that Garland’s death was the result of an accidental injury arising out of the course of his employment. The Commission also concluded, however, that the decedent left no dependents, thereby denying the children’s claim for compensation benefits.

Mrs. Hess filed an appeal from the order of the Workmen’s Compensation Commission in the Baltimore City Court where issues raised as to the nature and extent of dependency were submitted to a jury. At the close of the claimants’ case, the appellant’s motion for a directed verdict was denied. The jury, at the conclusion of the trial, found that the claimants were wholly dependent upon the deceased. The trial court after a hearing, denied appellant’s motion for a judgment n.o.v. or a new trial, and appellant promptly filed a notice of appeal to this Court.

The issue raised by this appeal is:

Whether the Baltimore City Court erred in denying the employer and insurer’s motions for a directed verdict and allowing to stand the jury’s verdict that the claimants were wholly dependent upon the deceased at the time of his accidental injury and death.

To a substantial extent, the facts in the case are undisputed. Shirley Hess and the deceased, Grady Garland, were never married, but they were the parents of two children, Angela, born on July 20,1968, and Grady Scott, born on June 22, 1975. These two children, Mrs. Hess, and Mrs. Hess’s four other children from a previous marriage lived with the deceased from 1967 to 1975. In September of 1975, after an argument between Mrs. Hess and Mr. Garland, Mr. Garland left the home to live with his sister. It is undisputed that from September of 1975 until Garland’s death on December 16, 1976 the parties did not live together.

The evidence presented at trial showed that Shirley Hess and Grady Garland entered into a paternity agreement in September of 1975 by which Garland agreed to pay the sum of $15.45 per week for the support of each of the children, a total payment of $138.27 per month. A decree was entered evidencing this agreement. Mrs. Hess was then receiving a grant from the Department of Social Services in the amount of $308.00 for the support of the members of her family. As a condition for the continuation of her Social Services grant, Mrs. Hess was required to sign a “form 80” allowing the agency to receive support payments on her behalf, the payments to come out of the weekly payments to be made by the deceased pursuant to the paternity decree. The evidence also indicated that during the period of the deceased’s separation from his children he would visit them two to three times a week, and on those occasions Mr. Garland and Mrs. Hess would “go shopping for groceries, medicine, if the children needed them, anything that they needed,” and “Mr. Garland also bought the children clothing, birthday presents ... generally anything ... that they needed.”

A number of payments were made pursuant to the decrees, and at the time of his death the decedent was in arrears on the required payments. An agent for the Maryland Parole and Probation Department testified that the Department of Social Services grant was made subject to the understanding that when Garland made any payments pursuant to the paternity decree, these funds would be paid to the Social Services Department without any increase or decrease in the grant.

It was conceded by the agent that no demand for payment was ever made on Mr. Garland prior to his death, and that Mrs. Hess was never notified of the status of Mr. Garland’s payments.

There was additional testimony by Mrs. Hess that there was a possibility that she and Mr. Garland might resume living together, but she conceded there were “a few little problems we had yet, and besides, he was living in Reisterstown.” In any case, no date had been set for the resumption of their previous living arrangements.

In reviewing the propriety of the trial judge’s action in denying a directed verdict or judgment n.o.v., we are required to resolve all conflicts in the evidence in favor of the plaintiff, to assume the truth of all credible evidence presented in support of the plaintiff, and to accept as true all inferences naturally and legitimately arising from the evidence which tend to support the plaintiff’s right to recover. B.P. Oil Corp. v. Mabe, 279 Md. 632, 370 A.2d 554 (1977); Fleming v. Prince George’s County, 277 Md. 655, 358 A.2d 892 (1976). If there is competent evidence, however slight, tending to support the plaintiff’s right to recover, the case should be submitted to the jury and the motion for judgment n.o.v. denied. Krol v. York Terrace Bldg., Inc., 35 Md. App. 321, 370 A.2d 589 (1977); Keene v. Arlan’s Dept. Store of Baltimore, Inc., 35 Md. App. 250, 370 A.2d 124 (1977).

Appellant urges that the trial court erred in denying appellant’s motions for a directed verdict and by allowing the jury’s verdict that the claimants were wholly dependent on the deceased to stand.

Maryland Code (1957, 1979 Repl. Yol.) Art. 101, Section 36(8)(e) provides: “In all cases, questions of dependency, in whole, or in part, shall be determined by the Commission in accordance with the facts in each particular case existent at the time of the injury resulting in death of such employee....” Appellant argues that this section requires the Commission to consider only the facts existent at the time of the injury and to determine from those facts whether the claimant was actually receiving the necessities of life from the decedent. Appellant further contends that at the time of Garland’s injury and death, his children were not receiving the necessities of life from him, and that under these circumstances, the trial court should have granted its motion for directed verdict at the conclusion of the appellees’ case or at the least should have granted its motion for judgment n.o.v. or for a new trial. The cases which follow this line of reasoning are represented by: Bituminous Construction Co. v. Lewis, 253 Md. 1, 251 A.2d 888 (1969); Superior Builders v. Brown, 208 Md. 539, 119 A.2d 376 (1956); and Brooks v. Bethlehem Steel Co., 199 Md. 29, 85 A.2d 471 (1952).

There is, however, another line of cases that suggests that dependency may be found when the facts existent at the time of injury reveal that the claimant had in the past substantially received the necessities of life from the workman, that a temporary lapse had occurred in the workman’s support of the claimant, and that a reasonable probability existed that the support of the claimant would resume in the near future. Maryland House of Correction v. Jenkins, 228 Md. 146, 178 A.2d 892 (1962); C. W. Wright Construction Co. v. Brannan, 217 Md. 397, 142 A.2d 574 (1958); Harvey v. George J. Roche & Son, 148 Md. 363, 129 A. 359 (1925); State Industrial Accident Comm. v. Downton, 135 Md. 412, 109 A. 63 (1919).

This theory of dependency evolved from State Industrial Accident Comm., supra, where the Court of Appeals first suggested that dependency could be established by a legal obligation to support “coupled with a reasonable probability that such obligation will be fulfilled.” 135 Md. at 416. Later, in Harvey v. George J. Roche & Son, 148 Md. at 370, the Court of Appeals noted that where án interruption to regular support existed, the issue to be determined is “whether the interruption is only temporary or means an end to support.”

The Court of Appeals in State Industrial Accident Comm. v. Downton, supra, and in Harvey v. George J. Roche & Son, supra,

recognized the possibility that there could be a question of “reasonable probability” in some circumstances. And in the latter case, in which the former was cited, it was said ... that “a question of probability would, accurately speaking, arise only when an interruption to regular support is to be considered” and that the question of “whether the interruption is only temporary, or means an end to support, is one of probability,” but because a question of probability did not arise in that case, it was unnecessary to decide whether the instructions there were erroneous. See also Meyler v. Mayor & C.C. of Baltimore, 179 Md. 211, 17 A.2d 762 (1941), where the phrase “reasonable probability” was used in connection with “an obligation to support.” [228 Md. at 151.]

In C. W. Wright v. Brannan, supra, the same proposition of law was before the Court of Appeals after a lapse of more than a quarter of a century. In that case, the Court had the occasion to consider the question of probability of resumption of support in the foreseeable future as of the date of injury. A majority of the Court decided there was “no basis for a determination ... [of] any reasonable probability of resumption of support....” 217 Md. at 405.

In Maryland House of Correction v. Jenkins, supra, the Court of Appeals citing with approval Merrill v. Penasco Lumber Co., 204 P. 72 (N.M. 1922) said:

... [J]ust as the existence of the marital status does not of itself prove dependency, so the lack of actual support by the husband does not of itself negative dependency. The failure to support is only one circumstance for consideration. The reasons for it, the length of its continuance, the mutual attitude and means of the parties, the probable resumption of duty, and other similar matters may have a distinct bearing on the subject. If dependency were determined only by the fact of contribution to support, a wife and children might be dependent one week and cease to be the next according to the caprice of the husband and father. [228 Md. at 151-52.]

It is our function in this case to determine whether there was evidence legally sufficient to be submitted to the jury. We are convinced that there was. We conclude that based on the evidence in this case the question of dependency was a question of fact, not of law. There was evidence from which the jury might have found that the deceased after separation remained in the area at a known address, and phone number; that he continued to be employed in the immediate area; that he regularly visited the children; that in addition to signing a paternity decree in which he obligated himself to pay support for the children on a monthly basis, he regularly purchased groceries, clothing, medicine and other needs of the children; that the deceased made regular payments on the order in the paternity cases from November 24, 1975 until February 3, 1976, though he was substantially in arrears when he died in December, 1976; that deceased did not marry anyone or arrange to live with another woman; that at the time of his death the deceased and Mrs. Hess were actively engaged in discussing a reestablishment of their family. These facts were sufficient to require the trial court to deny appellant’s motion for directed verdict and to deny its motion for judgment n.o.v. or for a new trial.

In Maryland House of Correction v. Jenkins, supra, the Court of Appeals sustained a jury finding of dependency upon a deceased workman in a much weaker case factually. There, the evidence showed that the decedent had been living with a paramour before his incarceration, had been quoted as saying that he intended to return to the paramour after his release, and had provided no support to claimants during his incarceration. The Court felt, based solely on a letter written to his wife, in which he expressed “love and concern” for his family, that an inference could reasonably have been drawn by the jury that the decedent would probably have supported the claimants when he was released from prison. The Court cited with approval LaSalle County Coal Co. v. Industrial Commission, 356 Ill. 421, 190 N.E. 687 (1934) where it was stated:

[Dependency, once recognized and firmly established by regular contributions for support over a reasonable course of time, is not abruptly terminated by the temporary failure of the contributor to meet his obligations of support as they become due, in the absence of proof that the relationship has definitely ceased to exist.... [228 Md. at 152.]

The factual issue of dependency was fairly presented to the jury, and we find no error in the trial court’s refusal to grant the appellants’ motion for directed verdict or to grant their motion for judgment n.o.v. or for a new trial.

Judgment affirmed.

Costs to be paid by appellants.