author:
Orth, C. J.,
      Lowe, /.,

text:
    LOWELL DOUGLAS HOWELL, JR. and LEONARD FRANCIS KASCHENBACH, JR. v. STATE OF MARYLAND
    [No. 401,
    September Term, 1975.]

      Decided January 5, 1976.

      The cause was argued before Orth, C. J., and Morton and Lowe, JJ.

      Raymond M. Faby, Assigned Public Defender, for appellant Lowell Douglas Howell, Jr. James J. Fabian, with whom was John W. Pfeifer on the brief, for appellant Leonard Francis Kasehenbaeh, Jr.

      Gilbert H. Robinette, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and William S. Townsend, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court. Lowe, J., dissents and filed a dissenting opinion at page 659 infra.

I

The primary issue in this appeal is whether the tear gas gun in this case is a handgun within the contemplation of Code, art. 27, § 36B (d), proscribing the unlawful use of a handgun in the commission of certain crimes. We hold that it is.

STATEMENT OF CASE

Lowell Douglas Howell, Jr. and Leonard Francis Kaschenbach, Jr., jointly tried at a bench trial in the Circuit Court for Baltimore County on 27 February 1975, were convicted of feloniously assaulting Merlin Harry Clough with intent to rob him, and of unlawfully using a handgun in the commission of a felony. Each accused was sentenced to five years. On 3 March, Kaschenbach filed a motion for a new trial. On 26 March Howell noted an appeal. On 7 April, Kaschenbach’s motion for a new trial was heard and denied. On 25 April he noted an appeal. By our order of 10 July 1975, upon motion of the State, and pursuant to Maryland Rule 1035 b (3), we dismissed the appeal noted by Kaschenbach “insofar as it goes to the judgment . . . entered on February 27, 1975, ... as not having been filed with the lower court within the time prescribed by Maryland Rule 1012. . . .” We further ordered Kaschenbach’s appeal, “insofar as it goes to the denial of a motion for a new trial, be, and is hereby, limited to the issue of the propriety of the trial court in its denial of that motion.”

THE EVIDENCE

At the guilt stage of the trial, Clough testified that while driving on the Beltway he gave two hitchhikers a ride. When he stopped to let them out “the guy in the front pulled a gun out, and stuck it up to my head, and asked me if I had any money, and I told him I didn’t. Then he said, get out. So I got out.” He described the gun: “ [i]t was a .22, it looked like a .22 to me anyway. ... It was, I think it was just like a black or darkish color.” On cross-examination he was asked how he arrived at the conclusion that it was a .22. He said: “Well, I’d seen a lot of .22s, and when I saw it out of the corner of my eye, that’s what it looked like pretty much to me. ... It was a dark color, like a blackish or a dark blue.” Shortly after the commission of the offense, Howell and Kaschenbach, on foot, were seen by Corporal Franklin E. Pugh of the Baltimore County Police. Pugh had received a report of the Clough incident over his police radio, and the men he saw answered the description of the felons. He accosted the two men. “At this time I observed a small handgun laying on the ground behind the two subjects, directly beneath, behind them. . . . And when I stopped them when I looked down directly behind the two subjects I was standing in front of, the handgun was laying on the ground.” Pugh described the weapon: “It was a model 1969 .22 caliber gas, made in Italy, black with brown plastic grips.” Kaschenbach had “a small brown holster” hooked to his belt “right in the small of his back.” The gun and holster were received in evidence without objection. Howell testified in his own defense. On cross-examination he said that he knew that Kaschenbach carried “this tear gas gun for self protection. ... He told me about it, but that’s the first time I seen it, that night.” Kaschenbach also testified. He admitted that he “did carry a tear gas gun for my protection, because last year I was jumped by six guys, and it’s on record at Essex Police Station, and so I purchased a gun, which is not fatal but is harmful, to give me enough time to get away from attack.” He did not have a permit for it, “. . . I didn’t think I needed one; I didn’t know if it was actually illegal.”

At the hearing on Kaschenbach’s motion for a new trial, the Assistant State’s Attorney told the court: “Your Honor, we have secured the services of a mutually acceptable expert in the person of Mr. Howard Donahue.” Howard T. H. Donahue, the owner of Donahue’s Gun Specialties, was called by Kaschenbach and gave his qualifications. The State stipulated “as to Mr. Donahue’s qualifications as an expert witness in the field of guns generically.” He was shown the gun admitted in evidence. Donahue said that he had examined it a short time ago in his shop. Upon questioning by defense counsel he testified, as we understand it, that the weapon could not be readily converted “by normal, simple tools” into a conventional pistol which would fire bullets. There was a baffle which made very difficult the drilling out of the barrel to open it completely. On cross-examination, however, he discussed the explosive mechanism used to discharge the weapon. He was shown two copper caps. He identified each as “a tear gas projectile.” One had been fired. “It’s apparent that one has been fired by seeing a relatively heavy imprint of the firing pin on the rear of the place and also the slightly swollen nature of the place, which would indicate an explosion took place within.” According to Donahue, “As far as the weapon is concerned, the name tear gas is a misnomer.” He explained: “Tear gas is a rather large quantity of very fine particles, it’s not actually a gas at all. And to fire it, firing would expel these projectiles, which are very highly irritating to the eyes. . . . My opinion is that if the gun were pointed at somebody’s face, whether it contained blank or tear gas, at close proximity, that is, two feet or less, it would be extremely destructive to an individual’s eyes.” The witness was asked:

“ [I]n the case of the weapon you have examined, and that you have in your hand at this moment, and relating that weapon to the casings, which I have also asked you to examine, do I understand correctly that it is your opinion that the propellant for the tear gas, the infinitely small tear gas projectile you referred to, is some form of explosive?”

Donahue replied:

“Well, chemically you have a mercury oxide cyanate, or fulminate of mercury, or one that stiffenates, which is a nitrate compound, and it’s an explosive; in fact, they are both extremely violent explosives.”

The court inquired: “The fulminate of mercury, or whatever the other term is, is the explosive propellant, is that correct, sir? I mean, the explosion causes whatever else is in that cap to be propelled?” Donahue said that was correct. The court pursued the matter. Donahue answered “yes” to the question, “Now, that explosive causes whatever is in there to be propelled?” The transcript reads:

“. . . . Now, that which is in there, not the explosive itself, but whatever content the cap has, when the explosion takes place, and that is propelled, is that destroyed upon contact, do you know?
THE WITNESS: Do you mean the chemical preparation?
THE COURT: Yes.
THE WITNESS: Is that destroyed on contact with the individual it strikes?
THE COURT: Yes, sir, or whatever it may strike.
THE WITNESS: It possibly will go into a solution. But that I do not know. I know that the gas is a highly irritant property; whether it’s destroyed or not I do not know.”

THE LAW

The General Assembly, concerned with the increase of crimes of violence, took action by enacting ch. 13, Acts 1972, adding new sections 36B-36F, entitled “Handguns”, to art. 27 of the Code. In so doing it set out these findings and declarations in § 36B (a) as a “Declaration of policy”:

“(i) There has, in recent years, been an alarming increase in the number of violent crimes perpetrated in Maryland, and a high percentage of those crimes involve the use of handguns;
(ii) The result has been a substantial increase in the number of persons killed or injured which is traceable, in large part, to the carrying of handguns on the streets and public ways by persons inclined to use them in criminal activity;
(iii) The laws currently in force have not been effective in curbing the more frequent use of handguns in perpetrating crime; and
(iv) Further regulations on the wearing, carrying, and transporting of handguns are necessary to preserve the peace and tranquility of the State and to protect the rights and liberties of its citizens.”

Subsection (d) of § 36B provided:

“Any person who shall use a handgun in the commission of any felony or any crime of violence as defined in § 441 of this article,!] shall be guilty of a separate misdemeanor and on conviction thereof shall, in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor, be sentenced to the Maryland Division of Correction for a term of not less than five nor more than fifteen years, and it is mandatory upon the court to impose no less than the minimum sentence of five years.”

Section 36F (a) defined “handguns”:

“The term ‘handgun’ as used in this subheading shall include any pistol, revolver, or other firearm capable of being concealed on the person, including a short-barreled shotgun and a short-barreled rifle as these terms are defined below, except it shall not include a shotgun, rifle or antique firearm as those terms are defined below.”

In Todd v. State, 28 Md. App. 127, 135 (1975), we found it to be the legislative intent in the “Handguns” statute “to include any hand weapon simulating the appearance of a pistol or revolver that is capable of discharging a missile by any method of propulsion.” We believed that legislative use of the word “handgun” rather than the more restrictive word “firearm” was a matter of deliberate choice. Id., at 138. In reaching the finding in Todd, we looked to the American Heritage Dictionary of the English Language (1973) for the following definitions:

Gun — A weapon consisting essentially of a metal tube from which a projectile is fired at high velocity into a flat trajectory. A device that shoots a projectile.
Handgun — A firearm that can be used with one hand; a pistol.
Firearm — Any weapon capable of firing a missile, especially a pistol or rifle using an explosive charge as a propellant.
Missile — Any object or weapon that is fired, thrown, dropped or otherwise projected at a target; projectile.

The same dictionary states that a “pistol” is “A firearm designed to be held and fired with one hand.” It defines “projectile” as “A fired, thrown, or otherwise projected object, such as a bullet, having no capacity for self-propulsion.” Webster’s Third New International Dictionary of the English Language, Unabridged (1968) gives as a meaning of projectile “a body projected by external force and continuing in motion by its own inertia.” It illustrates a use of the word: “subatomic particles used as projectiles in atom smashing.” It sets out as a “specific” definition, “a missile for a firearm, cannon, or other weapon.” It defines missile as “a weapon or other object thrown or projected (as a stone, bullet, or artillery shell).” “Weapon” has been judicially defined in Maryland. In Bennett v. State, 237 Md. 212, 214-215 (1964), the Court of Appeals adopted the language of 3 Wharton’s Criminal Law and Procedure (Anderson’s ed., 1957), § 961, p. 111, stating that a weapon “is generally defined as anything used or designed to be used in destroying, defeating, or injuring an enemy, or as an instrument of offensive or defensive combat.”

DECISION

In Todd, it was manifest that the weapon propelled a projectile, and the issue turned on the nature of the propellant. In the case sub judice, it is manifest that the propellant was an explosive charge, and the issue turns on whether the weapon propelled a projectile. The evidence adduced was legally sufficient to show, in light of the definitions above set out, that the weapon here propelled projectiles, and the expert witness so testified. “Tear gas”, he explained, “is a rather large quantity of very fine particles, it’s not actually a gas at all. And to fire it, firing would expel these projectiles, which are very highly irritating to the eyes.” (emphasis added). We think that the size of the projectile is of no moment. Whether it be as big as an artillery shell or as small as a subatomic particle, it is still a projectile.

That the weapon in question was a gun is plain. That it may be carried and used in the hand is equally clear; so it was a handgun. It projected an object by means of an explosive force, and it had the appearance of a .22 caliber pistol. We have found that what it propelled were projectiles or missiles. It was capable of inflicting serious injury; “it would be”, the expert said, “extremely destructive to an individual’s eyes.” In short, its characteristics were such as to meet all the requirements of a handgun within the contemplation of the “handgun” statute. We hold that its use in the commission of a felony or a crime of violence as defined by art. 27, § 441 was a misdemeanor proscribed by § 36B (d).

Our holding is a narrow one. It is that a weapon, in the form of a pistol which will, or which is designed to, or which may readily be converted to expel, by an explosive force, tear gas in the form of finely divided solids or particles, is a “handgun” within the meaning of art. 27, §§ 36B-36F.

Kaschenbach asks if the trial court abused its discretion in denying the motion for a new trial “where the evidence clearly reveals that the State had failed to show that a tear-gas gun is a handgun under Article 27, Section 36B (d)?” Our holding that the weapon here was a handgun in the contemplation of the statute is dispositive of the question.

Howell also urges that the court below erred in deciding that a tear gas gun is included under the handgun statute. Under our holding the court did not err.

We give a caveat. It necessarily follows from our holding that a weapon of the type which is the subject of this opinion comes under all of the provisions of the handgun statute. Such a weapon is, therefore, subject not only to the proscriptions against unlawfully wearing, carrying, or transporting a handgun, § 36B (b), and unlawfully using a handgun in the commission of certain crimes, § 36B (d), but also to the provisions requiring a permit to carry a handgun, § 36E. We point this out because there is indication in the record before us that at the present time those charged with issuing handgun permits take the view that a permit is not required to carry such a weapon.

II

Howell, whose appeal goes to the propriety of the judgments against him, also questions the sufficiency of the evidence to sustain each conviction.

The Conviction of Assault with Intent to Rob

The testimony of Clough was legally sufficient to establish the corpus delicti of an assault with intent to rob him as charged, and Howell does not argue to the contrary. Howell attacks the proof of his criminal agency, claiming that “the identification in this instant case was questionable and not believeable.” We observe that Clough made a positive judicial identification of Howell as one of the felons. This was enough in law for the trier of fact to find the criminal agency of Howell. The allegations of Howell that the lighting at the time of the commission of the crime was poor and that Clough was uncertain in an identification at an initial confrontation, go only to the weight to be given the judicial identification. We note that in addition to the positive judicial identification of Howell, he was apprehended shortly after the commission of the crime in the proximity of the car stolen from Clough, that he fit the description given by Clough to the police, that he was in the company of another who fit the description of the second felon, and that a weapon answering the description of the weapon used in the crime was found at Howell’s feet when he was accosted by the police. We hold that the court was not clearly erroneous in its judgment that Howell was a criminal agent in the assault with intent to rob. Maryland Rule 1086; Williams v. State, 5 Md. App. 450 (1968).

The Conviction of the Use of a Handgun

At the trial Clough identified Howell as the person who “pulled a gun out, and stuck it up to my head, and asked me if I had any money. . . .” This evidence was legally sufficient to sustain the conviction of Howell of the misdemeanor of using a handgun in the commission of a felony. Broadway v. State, 23 Md. App. 68, 75-80 (1974); Code, art. 27, § 12; Williams v. State, supra. The trial court was not clearly erroneous in its judgment that Howell was guilty as charged under the third count of the indictment. Rule 1086.

As to Leonard Francis Kaschenbach, Jr.: order denying motion for a new trial affirmed.

As to Lowell Douglas Howell, Jr.: judgments affirmed.

One-half costs to be paid by Leonard Francis Kaschenbach, Jr.

Lowe, /.,

dissenting:

In 1928 Mr. Justice Charles Evans Hughes pointed out that judges are constantly sustaining the validity of legislation which as legislators they would probably condemn. That is within the judicial aegis and our proper function. We exceed that function when we extend the scope of legislatively proscribed activities to include that which the legislature “might” have meant to proscribe, but did not clearly so indicate.

Most laws, by their nature, curtail activities that, but for the law, would be accepted and continued as a matter of right. It is my view that, when our lawmakers restrict these rights in an effort to accommodate the needs of contemporary society, the restriction should be limited to that which is clearly stated without additional limitations being placed upon the activities of our citizens by our judicial interpretation of what we believe the lawmakers might have intended to include. This should be so without regard to our opinion of the activities restricted.

I raised no dissent in Todd v. State, 28 Md. App. 127, but my silence was maintained with some trepidation when I considered how far the language of that opinion might carry us. The journey is already upon us. There, as pointed out by the majority here, we found it to be the legislative intent in enacting Sections 36A through 36F of Article 27,

“ ... to include any hand weapon simulating the appearance of a pistol or revolver that is capable of discharging a missile by any method of propulsion.” (Emphasis added).

I can at least question the correctness of our decision in Todd', I do dissent from our decision here.

Whatever our own view of the propriety of outlawing tear gas guns may be, it can play no part in our interpretation of the intent of the Legislature in enacting its handgun proscription. “We must not be guilty of taking the law into our own hands, and converting it from what it really is to what we think it ought to be.” Rex v. Ramsey, 1 C & E 126, 136.

In interpreting the statute in Todd, we sought the intent of the Maryland Legislature by referring to the New York Supreme Court Appellate Division, 1st Department, the Municipal Court of Appeals for the District of Columbia, the Court of Criminal Appeals of Oklahoma and The American Heritage Dictionary of the English Language. In extending our interpretation of the Maryland Legislature’s intent to include tear gas as a projectile, we now have rung in Webster’s Third New International Dictionary of the English Language Unabridged.

If tear gas consists of projectiles as declared by the majority, so even more does the wadding of a blank cartridge starter pistol since the black powder residue will penetrate the skin when fired in close proximity thereto. Reasoning from the sublime to the ridiculous, we couple Todd’s interpretation of “any method of propulsion” to the majority’s view of a projectile and conclude that a water pistol falls more readily within the judicial definition of a handgun than does a tear gas gun. While the majority assumed the projectile must be capable of inflicting injury, we find no such requirement in the statute.

Both in Todd and here, the majority relied upon the “Declaration of policy” prefacing the statute in question. That declaration said in effect that the “substantial increase in the number of persons killed or injured” is traceable to the carrying of handguns on the streets and public ways by persons inclined to use them in criminal activity. The restriction placed upon “wearing, carrying and transporting handguns” was intended to reverse that trend. Nowhere do I find indicia of legislative intent therein indicating that the General Assembly meant to include in that restriction air guns or tear gas pistols.

It seems to me that the facts of both Todd and the instant case are indicative that the legislation is effective, if only to a limited degree. When criminals resort to air pistols (Todd, supra) and tear gas guns, the danger of death and serious injury in the perpetration of crime is greatly lessened. The declaration of policy indicates (to me) that since we cannot find the means to stop crime absolutely, the danger of death or injury from the commission thereof with a handgun will be made more difficult and especially onerous, toward the end that life and limb may be preserved while we continue to seek the solution to the preservation of property as well.

In addition to the declaration of policy, the majority finds sustenance in the Legislature’s choice of the term “ ‘handgun’ rather than the more restrictive word ‘firearm’. ...” I agree that this wording was a “matter of deliberate choice; ” however, I cannot agree that “firearm” is more restrictive than “handgun.” By the majority’s own definition, taken from The American Heritage Dictionary of the English Language (1973), a “firearm” is “[a]ny weapon capable of firing a missile.” (Emphasis added). That term includes long arms as well as handguns and long arm inclusion in the handgun law was clearly not the legislative intent. “Firearms” may be more restrictive as to the means of propulsion; however, it does not restrict the type of projectile.

Common sense (for which I cannot cite judicial authority) leads me to conclude that if the Legislature intended to proscribe the “carrying, wearing or transporting” of tear gas, it would have done so, not only when carried in the shape or form of a “handgun” but in whatever other form it may take, such as a fountain pen, cosmetic compact, cane or other such container purchasable as a weapon of self defense. It is inconceivable that the Legislature would subject a person to imprisonment merely because of the shape of the tear gas container he carried and not do so to another carrying an equally dangerous but differently shaped container. I have taken the liberty of assuming that the majority would be willing to accept a restriction on their definition requiring that the shape of a handgun should at least resemble a “pistol, [or] revolver,” if not under the maxim “noscitur a sociis,” since those descriptive terms are used in the definition in § 36F, then by their express reference thereto in the “narrow holding.” See p. 10 of majority opinion. Without that shape restriction, a permit would be required to transport aerosal bombs and shaving cream dispensers.

Even more does my unauthoritative common sense lead me to the conclusion that the term “projectile” upon which the majority opinion turns (spoken of in one of the dictionary definitions), should be viewed in the context of its use, ie., that which is fired from a handgun. We are hard pressed to reach a result when we must consider sub-atomic gaseous-like particles as projectiles in the same category as the bullet in a cartridge or the shot in a shell. The majority’s opinion of the Legislature’s intent to include tear gas guns is supported entirely by a semantic foundation of lexical morphemes.

It is my opinion that if the General Assembly wishes to create the crime of transporting tear gas weapons or add a mandatory penalty for using them to perpetrate a crime, it should say so in a clear enough manner that we need not seek its intent in New York, Oklahoma, the District of Columbia or scattered among proliferate terms in various dictionaries.

I respectfully dissent.

      . The convictions were under the second and third counts of the indictment jointly charging them. The court found both accused not guilty on the first count charging the assault of Clough “because that merges into the second count.” The State “abandoned” the fourth count, charging the larceny of the use of Clough’s automobile. This is according to the transcript of the proceedings at the guilt stage of the trial. At the penalty stage the court observed, “The State abandons counts one and four.” We note that the docket entry under date of 27 February 1975 reads: “State abandons counts 1 and 4.”

      . The judge imposed sentence thus: “As to both Defendants, on count number two, five years in the Department of Correction, suspended indefinitely. As to count number [three], five years in the Department of Correction; the sentences to run concurrently.” The court at first referred to count four but shortly thereafter indicated it meant count three.

      . Sections 441-448 of art. 27, are under the title “Pistols”. Section 441 concerns definitions. By subsection (e) “The term ‘crime of violence’ means abduction; arson; burglary, including common-law and all statutory and storehouse forms of burglary offenses; escape; housebreaking; kidnapping; manslaughter, excepting involuntary manslaughter; mayhem; murder; rape; robbery; .and sodomy; or an attempt to commit any of the aforesaid offenses; or assault with intent to commit any other offense punishable by imprisonment for more than one year.” The crime of violence Howell and Kaschenbach were accused of committing was a felony. Code, art. 27, § 12.

      . We said in Todd, at 135, that the weapon “was, in short, a handgun unless it was the legislative purpose and intent to have the handgun statute limited in its effect to those hand weapons from which a bullet or missile is ejected by an explosive charge.”

      . A tear gas compound may also be in the form of gas or liquid droplets as well as finely divided solids. McGraw-Hill Dictionary of Scientific and Technical Terms (1974).

      . See Training and Operations Manual, Maryland Police Training Commission, (1972), at IV-24 and 25.

      . A “revolver” is a pistol having a revolving cylinder with several cartridge chambers. The American Heritage Dictionary of the English Language.

      . For long past the General Assembly of Maryland has been concerned with the use of dangerous and deadly weapons in the commission of crimes. In 1886 it created the crime of wearing or carrying a weapon concealed upon or about the person or of wearing or carrying it openly with the intent of injuring any person unlawfully. Acts 1886, ch. 375. Although frequently amended, the substance of the 1886 Act remained the same. The Act as amended is now codified as art. 27, § 36. In 1927 a more severe penalty for the common law offense of robbery was authorized when that felony was committed with a dangerous and deadly weapon. Acts 1927, ch. 457, now codified as art. 27, § 488. In 1933 the Legislature enacted the Uniform Machine Gun Act. Acts 1933, ch. 550, codified as art. 27, §§ 372-383, included the declaration that possession or use of a machine gun in the perpetration or attempted perpetration of a crime of violence was a felony, § 373, and the possession or use of a machine gun for offensive or aggressive purpose was a penitentiary misdemeanor, § 374. Machine guns must be registered, §§ 378-379. In 1941 the General'Assembly regulated the sale, transfer and possession of pistols and revolvers. Acts 1941, ch. 622; Code, art. 27, §§ 441-448. Section 445 (c) proscribed the possession of a pistol or revolver by any person “who has been convicted of a crime of violence, or of any of the provisions of this subtitle or who is a fugitive from justice or a[n] habitual drunkard, or addicted to or an habitual user of narcotics, barbiturates or amphetamines. . . Section 445 (b) prohibits the sale or transfer to such person or to “any person under twenty-one years of age as required by federal law.” In 1971, the misdemeanor of carrying a deadly weapon upon school property was established. Acts 1971, ch. 614; art. 27, § 36A. It was a year later that the General Assembly, more and more concerned with the increase of crimes of violence, took further action by enacting the “handgun” statute. In 1973, it became a felony under the law of this State for an individual to have certain weapons, whether open or concealed, on or about his person, “while aboard or with intent to board an aircraft engaged in certificated air commerce services.” Acts 1973, ch. 334; Code, art. 27, § 36A-1.
      These various statutes covered a variety of weapons. The “carrying or wearing weapon” statute, art. 27, § 36, as first enacted, applied to “any pistol, dirk-knife, bowie-knife, slung-shot, billy, sand-club, metal knuckles, razor or any other dangerous or deadly weapon of any kind whatsoever (penknives excepted).” As in effect in 1971 the same weapons were proscribed and “switchblade knife” had been added, the exception being changed to “penknives without switchblade.” With the enactment of the “handgun” statute in 1972, “pistol” was eliminated and “handguns” were excepted. By Acts 1974, ch. 718, “nunchaku”, defined as “a device consisting of two pieces wood, metal, plastic, or other like substance connected by any chain, rope, leather or other flexible material not exceeding 24 inches in length” was added. § 36 (a) and (b). As now in effect, “handguns” are without the ambit of the “carrying or wearing weapon” statute. When the Legislature excluded pistols and other handguns from the provisions of the “carrying or wearing weapon” statute, it included in § 36B, provisions comparable to those in § 36. In addition to making it a felony to use a handgun in the commission of crime by § 36B (d), the statute, by § 36B (b) made it a misdemeanor for any person to wear, carry, or transport any handgun, whether concealed or open, upon or about his person, or to wear, carry or knowingly transport any handgun, whether concealed or open, in any vehicle traveling upon, the public roads, highways, waterways, or airways or upon roads or parking lots generally used by the public in this State. Punishment for first and subsequent offenses were set out in § 36B (b) (i), (ii), (iii) and (iv). Exceptions were provided in § 36B (c).
      Neither the statute authorizing a greater penalty for robbery committed with a dangerous and deadly weapon nor the “carrying or wearing weapon” statute defined “dangerous and deadly weapon.” Judicial decision has defined “weapon”, as we have indicated, as anything used or designed to be used in destroying, defeating, or injuring an enemy, or as an instrument of offensive or defensive combat. Bennett v. State, supra, 214-215. It is necessary to show, however, that the weapon is dangerous or deadly, Vincent v. State, 220 Md. 232 (1959), proof of either being sufficient, Bell v. State, 5 Md. App. 276 (1968). See Hayes v. State, 211 Md. 111 (1956). The character of a weapon as dangerous or deadly is not necessarily determined by its design, construction, or purpose. It is when a weapon is in fact used in such a way as is likely to produce death or grievous bodily harm, that it may properly be regarded as a dangerous or deadly weapon. Bennett v. State, supra. A knife may be either a deadly or only a dangerous one, depending on the size of the blade and the manner of its use. Bell v. State, supra. A “gravity knife” has been held to be a dangerous and deadly weapon. Savoy v. State, 236 Md. 36 (1964). A microphone cord on a taxi radio may be a dangerous weapon. Bennett v. State, supra. An unloaded pistol is at least a dangerous weapon. Hayes v. State, supra; Wallace v. Warden, 226 Md. 670 (1961). A starter’s pistol is a dangerous weapon, Jackson v. State, 231 Md. 591 (1963), as is a gun fully loaded but not fireable, Myers v. State, 237 Md. 632 (1965).

      . Although it is manifest that at the guilt stage of the trial, the judge concluded that the weapon here was a handgun within the ambit of § 36B, the reasons for his conclusion were not readily apparent from the transcript of the trial. He had no doubt that it was “a dangerous and deadly weapon”, referring to Hayes v. State, 211 Md. 111 (1956), but the problem was whether there was any authority that the legislature included in “the generic term handgun”, starter pistols, cap pistols or a tear gas gun. Although the weapon was “a gas pistol and not an honest to heavens Jesse James pistol”, he ruled that it was a handgun under the statute.
      In denying the motion for a new trial, the court was more specific. It accepted an opinion of the Attorney General, 58 O.A.G. 572, 576 (1973), which found it “abundantly clear that the term handgun as defined in Section 36(P’) of Article 27 of the Annotated Code of Maryland covers the same weapons as contemplated in the ‘Gun Control Act of 1968’, codified at 18 U.S.C. 921 (3). The Gun Control Act of 1968 defines firearm as ‘. . . any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.’ . . . There can be no question but that the definition of firearm contained in the Gun Control Act of 1968 contemplates and includes the definition of a handgun under the Maryland Statute.” The court observed that the testimony of Donahue was that the weapon here “could not be corrected to expel a projectile by the action of an explosive, other than any projectile which it was already designed to expel.” The court discussed “projectile”, and found that the weapon in question fell within the definition of a device “designed to expel a projectile by the action of an explosion.” The court made an alternative finding, that the weapon fell within the definition of “any destructive device” set out in subsection (D) of the federal statute. “Because the testimony before the court, and common sense, tell us that this device, if used in close proximity to the skin or the eyes, would have a certain destructive effect. . . The court continued: “So that under either approach it is the court’s opinion that this device falls within the definition as set forth by the Legislature, and certainly falls within the contemplation of the Legislature at the time of the passage of this Bill. In other words, the court is holding as a matter of law that the Legislature, through its language, had the legislative intent to include within the prohibition contained in Article 36 [B] devices such as the State’s exhibit in this case.”
      We need not, and do not now, determine whether the Maryland handgun statute covers the same weapons included in the federal Gun Control Act of 1968.

      . Clough was requested by the prosecutor “to leave the witness stand, come right down into this part of the courtroom, and I want you to look around carefully, and see if you can identify in the courtroom today anyone whom you saw on that night that this robbery took place.” Clough identified two persons. The transcript reads:
      “A. One is sitting in the back, all the way to the right.
      THE COURT: Go back and put your hand on him.
      THE WITNESS: This one right here.

        MR. TOWNSEND [Assistant State’s Attorney]: Indicating the young man in the green check jacket and the white tie.
      THE WITNESS: This one right here.
      Q. (BY MR. TOWNSEND): Can you tell the court which one was the one that held the gun on you?
      A. Right here.
      THE COURT: Did you identify two people back there, I couldn’t see?
      THE WITNESS: Yes, sir, this one right here and right there.”
      At the request of the court the two persons whom Clough identified stood and gave their names. They were Howell and Kaschenbach. But the record does not reflect, at this point, which of the two was the one who held the gun. We have cautioned before that care should be taken to have the record properly show what was obvious to those present. That the man who held the gun is “Right here”, does not tell the reader of the record who the man is. Fortunately, the matter was cleared up in the record on cross-examination of Clough. Howell’s attorney stated in examining Clough: “You have told the court that Lowell Howell, this tall boy, is the one who held the pistol.”

      . Howell, as an indigent, applied to the Public Defender for assignment of counsel to represent him on appeal. The appearance of an assigned public defender to represent him was entered. Kaschenbach was represented on appeal by privately retained counsel.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    LEONARD S. BLONDES v. ALAN HAYES et al.
    [No. 403,
    September Term, 1975.]

      Decided January 5, 1976.

      The cause was argued before Orth, C. J., and Morton and Lowe, JJ.

      Glenn Howard, with whom was Morris Neidorf on the brief, for appellant.

      Aaron M. Levine for appellee Alan Hayes. Michael A. Schuchat for appellee Takoma Park Shopping Center, Inc.
   Lowe, J.,

delivered the opinion of the Court.

Appellant Leonard S. Blondes leased property from appellee Takoma Park Shopping Center (Takoma) upon which he erected a miniature golf course. Blondes sold that business to appellee Alan Hayes for $12,000, together with Hayes’ agreement to pay Blondes’ rent to Takoma.

Subsequently, Hayes sued Blondes in the Circuit Court for Prince George’s County claiming that Blondes, “a practicing attorney . . . highly conversant and familiar with legal, business and financial matters” sold the business to Hayes, “a non-lawyer and with limited education and no familiarity with legal or business matters,” by misrepresenting that:

1. the course would be financially profitable;
2. all building, zoning and other regulations were satisfied;
3. Hayes would receive stock of a valuable corporation and
4. a valuable leasehold interest plus valuable fixed assets; and that
5. the leasehold could be used for other business activities.

Additionally Hayes claimed reliance upon express and implied warranties breached by Blondes. Hayes sued for the return of his purchase price under each count.

Blondes then entered a third party claim against Takoma contending that “if the allegations of [Hayes] are true,” Takoma would be liable to Blondes for breach of contract (the lease) and for interference with a business relationship, i.e., Blondes and Hayes. Blondes claimed indemnification and damages of $32,000 in each count.

Since Hayes had declined to pay Takoma rent prior to filing his suit (nor had Blondes done so), Takoma sued its lessee Blondes in the District Court of Prince George’s County in summary ejectment, and for its past due rent. Blondes replied with a counterclaim asserting substantially that which he had included in his third party claim against Takoma in the Circuit Court. He claimed his damages were “in an amount in excess of $32,000, but not presently determinable and . . . [prayed] leave of Court to plead such damages when they are ascertained.” In the second count of the third party claim “(Interference with Business Relationship)” his demand was a little more explicit:

“WHEREFORE, . . . defendant further demands an award of damages for his loss of $32,000.00 or such additional or different sums according to proof, plus costs and such other relief as the Court deems proper under the circumstances.”

The District Court declined to recognize the counterclaim on jurisdictional grounds, but rendered judgment in the amount of $1125 for rent due to Takoma. Blondes appealed the District Court decision and obtained a stay of execution pending appeal. All cases were then consolidated and tried before a jury in the Circuit Court for Prince George’s County. The matter was submitted on issues and the jury found:

1. in favor of Hayes and against Blondes, damages assessed in the amount of $10,000; and
2. in favor of Blondes against Takoma, assessing damages in the amount of $1125.

Only Blondes has appealed. He assigns three errors which he claims so prejudicial as to warrant reversal.

“The Trial Court committed prejudicial error by allowing the jury to consider evidence concerning the source and nature of appellee Alan Hayes’ original purchase funds.
The Trial Court erred by directing the jury that any judgment rendered in favor of appellant Blondes would be limited to certain specified amounts.
The Trial Court erred by allowing the Takoma rent action to stand without remanding it for further proceedings.”

Source of Hayes’ Purchase Funds

In his opening statement, Hayes’ attorney said to the jury:

“Alan Hayes is the Plaintiff and he is suing Mr. Leonard Blondes. He is suing for a misrepresentation, which has also been called fraud. He is also suing for a breach of warranty.
Let me explain what these things are.
On March 29 of 1972, Mr. Hayes had some savings that he received from a case he had where his daughter was seriously injured and he obtained some money.
MR. NEIDORF: I object to this sort of introduction. I don’t think it matters where the money came from.
THE COURT: Overruled.”

When Hayes took the stand he explained having seen the advertisement for the sale of Blondes’ golf course in the newspapers. The following information was then elicited, as outlined in the opening statement:

“Q. Were you at that time looking for some business opportunities?
A. Yes.
Q. Can you give us the nature of the circumstances or what surrounded your ideas of looking for a business opportunity?
A. Well, I had a set income and a family to raise and my daughter had been injured and had extensive brain damage and the care she would have needed in the future was hard to determine and as a result of her getting in an accident and getting a brain injury I received ten thousand dollars that I thought it would be best to be used being invested to try to enhance my income at that time.”

Although faced with the previous ruling indicating what might be expected from further objection, counsel stepped once again into the breach — if at first somewhat hesitantly — thus obviating possible waiver, State Roads Comm. v. Bare, 220 Md. 91.

“MR. NEIDORF: Your Honor, I think this is irrelevant about his daughter.
THE COURT: Mr. Neidorf, if you have an objection, make it.
MR. NEIDORF: I object, Your Honor.
THE COURT: Overruled.
MR. NEIDORF: I ask that it be stricken.
THE COURT: Overruled.”

Although his objection was prefaced by an observation on the irrelevance of the testimony, the court did not request, nor did counsel offer, the specific grounds for his objection, Md. Rule 522 b and d 1. Therefore, he is entitled to a general review of the admissibility of the disputed evidence, as opposed to a review limited to those grounds articulated on the record, as he would be had he been asked his specific grounds for objection by the judge, Wilt v. Wilt, 242 Md. 129; Ross v. State, 24 Md. App. 246.

There are two possible grounds upon which objection to this evidence may have been based: materiality and/or relevancy. We will treat the objection as having raised both since these terms are often used interchangeably in the courtroom. McCormick on Evidence, (2nd ed.) at 434. McCormick further explains:

“If the evidence is offered to prove a proposition which is not a matter in issue or probative of a matter in issue, the evidence is properly said to be immaterial.
Relevancy, ... is the tendency of the evidence to establish a material proposition.
.. . the most acceptable test of relevancy is the question, does the evidence offered render the desired inference more probable than it would be without the evidence?” at 434-437.

The basic question before the jury in this case was whether Blondes was guilty of the tort of misrepresentation in selling his business to Hayes. To prevail in such a suit, a plaintiff must prove the elements of misrepresentation. These elements are set forth in Lambert v. Smith, 235 Md. 284, 287:

“ . . . (1) that the representation is false; (2) that its falsity was either known to the speaker or . . . was made with . . . reckless indifference to the truth . . .; (3) that it was made for the purpose of defrauding the person claimed to be injured thereby; (4) that such person not only relied on the misrepresentation but had a right to rely on it and would not have acted but for it; and (5) that he actually suffered damage as a result of it.”

In his brief to this Court, Hayes dismissed appellant’s argument of irrelevancy peremptorily. He stated that “Maryland has held that the relative position, education, training and experience of the parties may be brought into issue in a misrepresentation case. Fowler v. Benton, 185 A. 2d 344 [229 Md. 571].” That case, however, does not remotely stand for, nor even allude to, the proposition thus asserted. Hayes’ only other contention is that:

“Since reasonable reliance is one of the essential factors in a misrepresentation action, Maryland Encyclopedia Fraud §2, the experience of the appellee becomes relevant in his right to rely on the statements of appellant, and the source of his funds therefore becomes evidentiary in explaining the nature of his previous business dealings.”

Strain as we might to follow appellee’s reasoning, we see absolutely no probative value in the facts that Hayes had:

1. a set income;
2. a family to raise;
3. an injured daughter,
a. the nature and extent of her injury (brain damage),
b. the care she would need in the future,
c. the source of the injury;
4. the monetary recovery from the injury;
5. the need to invest the funds recovered.

Even accepting Hayes’ contention that such evidence is material in that it was offered to prove Hayes’ reasonable reliance on the misrepresentation and relevant in that it tended to prove that Hayes was unsophisticated in business dealings by showing that money used to purchase the business was not accumulated from successful business ventures, only the fact that the source of the funds was a personal injury suit has any probative worth. Hayes’ claim of admissibility is thus narrowed to the fine proposition that “[t]he fact that appellee received money through settlement of a personal injury claim could ... be considered relevant to his expertise and experience in handling funds.” This attenuated logic, while establishing an arguable basis for admission of the evidence in question, still fails to establish the propriety of such admission.

McCormick tells us in Chapter 16 at 438, that relevancy is not always enough. The probative value of the evidence must be weighed against its prejudicial effect. “[I]ts tendency to prove the issue in dispute [reliance upon Blondes’ misrepresentation] must be weighed against the tendency of the offered evidence to produce passion and prejudice out of proportion to its probative value.” State v. Flett, 234 Ore. 124, 380 P. 2d 634, 94 A.L.R.2d 1082, 1085. As to that question, the views of the litigants are contrasting. The appellant considers it to be “staged testimony” and “obviously a ploy to gain the jury’s sympathy.” Appellee Hayes contends that “[i]n any event, relevant or not, prejudicious or not, the statements were insignificant and picayunish.” Weighing the evidence on the McCormick balance, we hold that its prejudicial effect clearly outweighed its probative value. But that is still not enough for us to mandate reversal.

There must be injury as well as error to authorize a reversal, State v. Eye, Ear, Etc., Hospital, 177 Md. 517, 522, and the burden is on the appellant in all cases to show prejudice as well as error. Rippon v. Mercantile-Safe Dep., 213 Md. 215, 222. 4Since we may not inquire of jurors the reasons for their verdict, we are restricted to seeking probabilities of prejudice as opposed to proofs thereof. In Lawson v. Price, 45 Md. 123, 133, the Court said:

“Before we can reverse the ruling excepted to, we must be able to see that the party really has ground for exception, and may have been injured by what was done.” (Emphasis added).

In Dobbs v. State, 148 Md. 34, 48-49, in an opinion in which four judges joined in concurring with the per curiam opinion of the Court, Judge Offutt states:

“In my opinion, therefore, when the errors are of such a character, and so interwoven with the case, as to lead a fair and impartial mind, trained and experienced in judicial investigation, upon an examination of the whole case and all the rulings involved therein, to the conclusion that there is a reasonable probability that such errors may have affected the determination of the case, they are prejudicial and reversible.” (Emphasis added).

Thus guided by the “may have been injured” test, we have sought and found circumstances of “reasonable probability.” Although Hayes’ evidence proved the purchase price he had paid and for which he sued to have been $12,000, the jury returned its verdict in the amount of $10,000. In the absence of any other testimony or evidence upon which the jury might have relied, it is reasonable to infer that it chose to return only so much of the purchase price as was advanced' from the proceeds obtained “as a result of her [the daughter] getting in an accident and getting a brain injury . . .,” which appellant specified as $10,000. Seldom are circumstances of such inferential prejudice so apparent.

We hold, therefore, that the testimony was inadmissible as being irrelevant for the most part and unduly prejudicial however viewed. We further hold that injury has been shown by clear indicia of probable prejudice:

“In reaching this conclusion we have not disregarded or been unmindful of the well established principle . .. that in all cases where the inquiry turns upon intention and motive, and where fraud, corruption and the like constitute the gist of the action, any fact, however slight, if at all relevant to the issue, is admissible in evidence.” Knell v. Briscoe, 49 Md. 414, 422.

Still there must be limits to the inquiry, and it must be apparent to the court that the evidence offered, however remote, has some pertinency to the issue. Jameson and Wife v. Hall & Ames, 37 Md. 221, 233; Davis v. Calvert, et al., 5 G & J 269. The daughter’s accident, her lamentable injury, Hayes’ need to raise a family on a set income, and the impaired daughter’s needs in the future had not the slightest bearing on the issues. The fact that the funds invested were not procured by business acumen is not of such probative worth as to warrant the admissibility of evidence which is so highly prejudicial. The error of admission is reversible.

The Limit of Recovery — The Rent Action

Our reversal of the basic judgment precludes the necessity of responding to appellant’s second and third questions. We are compelled, however, to interject a note of caution upon remand.

The initial pleading by Hayes premised upon an action of deceit, contained among its claims of misrepresentations, certain representations concerning the future value or expected profitableness of the business. Such future expectancies are not appropriate grounds for jury consideration. Boulden v. Stilwell, 100 Md. 543, 555-556. In Appel v. Hupfield, 198 Md. 374, 379, the Court of Appeals said:

“In actions for deceit we recognize a clear distinction between (1) representations of past or existing fact and (2) expressions of opinion as to what will happen in the future. Ordinarily fraud cannot be predicated upon statements which are promissory in their nature, and therefore an action for deceit will not lie for the unfulfillment of promises or the failure of future events to materialize as predicted. Failure to fulfill a promise is merely a breach of contract, which must be enforced, if at all, by an action ex contractu. Boulden v. Stilwell, 100 Md. 543, 552, 60 A. 609, 1 L.R.A., N. S., 258; Knowlton v. Keenan, 146 Mass. 86, 15 N. E. 127; Sachs v. Blewett, 206 Ind. 151, 185 N. E. 856, 188 N. E. 674, 91 A.L.R. 1285; Tucker v. Owen, 4 Cir., 94 F. 2d 49.”

We further note that Count II of the third party action brought by Blondes against Takoma sought damages for “Interference with a Business Relationship” in excess of those claimed against Blondes by Hayes in the initial action. Third party actions are limited by language of the rule to the damages “ . . . for all or part of the plaintiff’s claim against him.” Md. Rule 315 (a). See White v. Land Homes Corporation, 251 Md. 603; Allen & Whalen v. Grimberg Co., 229 Md. 585.

Finally, we are unable to explain how an appeal of the District Court case for rent could be consolidated with the action for deceit in light of Cts. Art., § 12-401 c providing that civil cases in which the amount in controversy in the District Court exceeds $500, when appealed to the Circuit Court, shall be heard on the record made in the District Court. In any case, the District Court action is not directly appealable beyond the Circuit Court level as of right, and may only be reviewed upon writ of certiorari by the Court of Appeals.

Because of the confused state of the record on appeal, attributable to all parties to the appeal, we shall assess costs equally.

Judgment in favor of appellee Hayes against Blondes for $10,000 reversed and remanded for retrial.

Costs to be divided equally among the three litigants.

      . The lower court’s instructions, although differently worded, are essentially in accord as to the elements of this cause of action.

      . Citing “Pratt v. Johnson, 6 Md. 397; United Rys. & Electric Co. v. Dean, 117 Md. 686, 702, 84 A. 75; Dettering v. Levy, 114 Md. 273, 279, 79 A. 476; Swindell Bros. v. J. L. Gilbert & Bros., 100 Md. 399, 60 A. 102; Chesapeake & Potomac Tel. Co. v. Carey, 124 Md. 527, 93 A. 11; American Express Co. v. Terry, 126 Md. 254, 94 A. 1026.” Id. at 522-523.

      . Citing Sieland v. Gallo, 194 Md. 282; Balto. Transit Co. v. Castranda, 194 Md. 421.

      . Although this is a criminal case, no distinction was made as to civil or criminal harmless error prior to Chapman v. California, 386 U. S. 18 (1967).


text:
    ALYCE M. JOHNSON et al. v. COUNTY ARENA, INC. et al.
    [No. 405,
    September Term, 1975.]

      Decided January 6, 1976.

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

      Harry W. Goldberg for appellants.

      John A. Buchanan, with whom were Sasscer, Clagett, Channing & Bucher on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

This appeal arises from a wrongful death action in the Circuit Court for Prince George’s County, brought on behalf of Ava Johnson, a sixteen year old girl who died as the result of an injury received from a roller skating accident. Ava and four girlfriends had gone to the roller skating rink owned by appellees, County Arena, Inc. and America on Wheels, Inc. Being a novice skater, Ava skated slowly with her friends close to the outer railing of the oval track, avoiding the area near the middle of the rink where fast skaters usually skated. Several “skating guards” were employed by the rink to assist skaters and maintain order. Testimony was elicited from witnesses that immediately before the incident causing Ava’s injury the guards were “playing tag, as they often did.” One of these guards struck Ava from behind knocking her down, fell on top of her and caused a “pile up.” According to the testimony of one of the girls who was skating close to Ava:

“one of the guards came and he came real fast and he was big and he knocked her down and he ran into her.”

Ava’s leg was broken. Shortly after her leg had been set and placed in a cast, she died.

At the conclusion of appellants’ case, appellees moved for a directed verdict on the grounds that there had been no showing of primary negligence and that, even if there was evidence sufficient to generate a jury question as to negligence, the decedent had assumed the risk causing her injury.

Primary Negligence

The appropriate procedure for determining whether a motion for directed verdict should be granted in cases where negligence is in issue is to assume to be true all facts most favorable to the party against whom the motion is made and to draw all favorable inferences fairly deducible therefrom. If such facts and inferences are such that reasonable minds could differ as to whether the party had been negligent, the motion for directed verdict must be denied. Buchanan v. Galliher and Harless, 11 Md. App. 83, 87. Repeated use and rephrasing of this standard may cause a court to lose sight of how little evidence of negligence is necessary to provide a jury question. This general standard for determining whether to grant a directed verdict was elucidated in Fowler v. Smith, 240 Md. 240, 246:

“Negligence is a relative term and must be decided upon the facts of each particular case. Ordinarily it is a question of fact to be determined by the jury, and before it can be determined as a matter of law that one has not been guilty of negligence, the truth of all the credible evidence tending to sustain the claim of negligence must be assumed and all favorable inferences of fact fairly deducible therefrom tending to establish negligence drawn. Kantor v. Ash, 215 Md. 285. Cf. Suman v. Hoffman, 221 Md. 302. And Maryland has gone almost as far as any jurisdiction that we know of in holding that meager evidence of negligence is sufficient to carry the case to the jury. The rule has been stated as requiring submission if there be any evidence, however slight, legally sufficient as tending to prove negligence, and the weight and value of such evidence will be left to the jury. Ford v. Bradford, 213 Md. 534. Cf. Bernardi v. Roedel, 225 Md. 17, 21.” (Emphasis added in part).

Appellants showed that the decedent was proceeding slowly and carefully in a slow traffic lane and was struck with such force by a speeding skating guard that she fell to the ground under him and suffered a broken leg. The ordinary care owed to her by appellees through their guard was something greater than that which would constitute ordinary care expected of another patron of the rink. The guard who collided with Ava was a man approximately 25 years old and was hired to prevent just the type of accident which he caused. Testimony showed that he was hired by appellees to “. .. assist skaters . .. assist beginners. ... keep the composure of the rink .... keep the conduct. That is, that it is maintained orderly.”

Upon considering what evidence of negligence is sufficient to constitute a jury question, the standard of ordinary care imposed upon appellees is measured by that which should be exercised by a reasonable skating guard of the age, experience and responsibility of the perpetrator of the injury. Cf. Lemons v. Chicken Processors, 223 Md. 362, 367-368.

“Negligence has been defined as ‘any conduct, except conduct recklessly disregardful of an interest of others, which falls below the standard established by law for the protection of others against unreasonable risk of harm.’ A. L. Inst. Restatement of Torts, sec. 282. Complementing that statement, this should be read:
‘This actor should recognize that his conduct involves a risk of causing an invasion of another’s interest, if a person,
‘ (a) possessing such perception of the surrounding circumstances as a reasonable man would have, or such superior perception as the actor himself has, and
‘ (b) possessing such knowledge of other pertinent matters as a reasonable man would have or such superior knowledge as the actor himself has, and
‘ (c) correlating such perception and knowledge with reasonable intelligence and judgment would infer that the act creates an appreciable chance of causing such invasion.’
It does not exist apart from the facts and circumstances upon which it is predicated. Baltimore, C. & A. R. Co. v. Turner, 152 Md. 216, 228, 136 A. 609; Dickey v. Hochschild, Kohn & Co., 157 Md. 448, 450, 146 A. 282; Schell v. United Rys. & El. Co., 144 Md. 527, 531, 125 A. 158. It necessarily involves the breach of some duty owed by the defendant to the plaintiff (Philadelphia, W. & B. R. Co. v. Kerr, 25 Md. 521, 45 C. J., 632), and is inconsistent with the exercise of ordinary care. 45 C. J. 624 et seq. ‘Ordinary care’ is also relative, and varies with the nature of the facts and circumstances to which the term is applied. (Dickey v. Hochschild, Kohn & Co., supra; Merrifield v. C. Hoffberger Co., 147 Md. 134, 127 A. 500) and the degree of vigilance and circumspection required to constitute ordinary care must be proportioned to the harm which may result from the failure of a tort-feasor to so order his conduct and the operation of agencies under his control as to avoid injury to others. Ibid. Holler v. Lowery, 175 Md. 149,157-158.

It was more pointedly held in The Phila. Wil. & Balto. R. R. Co. v. Kerr, 25 Md. 521, 530-531, that a failure by one engaged in the pursuit of his own occupation or business, to observe precautionary rules established by competent authority to guard against accidents and prevent injuries to others, is in legal contemplation, a want of ordinary care.

Not only has the Court of Appeals held that the duty owed by one engaged in the pursuit of his business is dependent upon the relation or circumstance in which the respective parties find themselves, Lemons, supra, it also has held that the amount of care constituting due or ordinary care varies with the nature of the undertaking. Martin G. Imbach, Inc. v. Tate, 203 Md. 348, 358.

“Negligence is essentially relative and is predicated upon the existence of given facts which impose the duty of so acting in respect to such facts as not to inflict injury upon another which could be avoided by the exercise of that degree of care and prudence which persons of ordinary judgment and prudence may reasonably be expected to exercise under the same conditions.” id at 359.

The “standard” of ordinary care never varies; however, what action or precaution is required is dependent upon the then circumstances, Christ v. Wempe, 219 Md. 627, 640. Those circumstances may include the superior ability and experience of an actor and a failure to observe precautionary rules. established in pursuit of the actor’s occupation or business. The ordinary care of a mature skating guard is not the same as the ordinary care of a sub-teenage novice.

In the instant case, the ordinary care arising from the circumstance of the relationship of the parties, i.e., a guard in the conduct of his business, and one whom he is hired to protect, imposes a greater quantum of care upon the guard and his employer than had that relationship not existed. Thus, the evidence of the guard’s recklessness sufficiently raised a question of whether he had exercised the amount of care and prudence in the performance of his duties commensurate with his relationship to Ava, to require submission of the issue of negligence to the jury.

Assumption of the Risk

In ascertaining whether the decedent assumed the risk of the accident to which she was subjected, the relationship of the parties must again be considered. We are not called upon to determine whether the risk of being knocked down by a negligent patron of the rink was assumed by the decedent. It seems most clear to us that she did not assume the risk of being struck from behind by the negligent conduct of a guard hired to avert such accidents. It is that factual distinction which the trial judge overlooked in citing Nesbitt v. Bethesda Country Club, 20 Md. App. 226 as his reason for directing a verdict on appellees’ behalf.

In explaining his decision to the jury, the trial judge said:

“We concluded that the testimony of the young ladies who have testified here showed that there wasn’t really any showing of negligence on the part of this fellow who was skating around. He went into this girl. He came up from behind. But there has been a showing that she had taken her hand off the rail as a result of the skater there coming by. There was definite testimony that she was a novice skater. And this is the real reason which we get into, that is, a person assumes a risk, and we were presented a case, Nesbitt versus Bethesda Country Club, where a person was hit in the face with a golf club as a golfer swung back and it went to the Court of [Special] Appeals.
The Court of [Special] Appeals went into a great discussion of ‘Anyone who engages in any sport assumes the risk,’ and so forth.
There may be an attendant there when a person puts on wheels and starts to roller skate and they go in a crowded floor and they leave a place of safety and they go into a place of possible harm and injury. And this is what happened here. You take that chance. Football players, baseball players, basketball players, out attending a baseball game and somebody gets hit with a ball from the bat of one of the players, it is part of the game, so to speak. It is one of those things in Maryland that if you assume a risk or are contributorily negligent in the slightest degree, that precludes you from recovery.”

The “great discussion” in Nesbitt was the following paragraph:

“Some imagination might permit us to assume that appellant’s initial objection relates to assumption of risk and that his reason for the objection is that golf is not the type of sport where there is a risk to be assumed. If appellant’s apparent assertion is that the doctrine of assumption of risk applies only to certain sports, he is in error. ‘A voluntary participant in any lawful game, sport or contest, in legal contemplation by the fact of his participation, assumes all risks incidental to the game, sport or contest which are obvious and foreseeable.’ 4 Am.Jur.2d, § 98; see also Hawayek v. Simmons, (La. App.), 91 So. 2d 49, 53, 61 A.L.R.2d 1254.” Nesbitt, 20 Md. App. at 232. (Emphasis added).

It will be noted that great care was taken in framing the controlling sentence in Nesbitt to emphasize the qualification to the general application of the doctrine of assumption of risk to all sports. We think it clear that the only risks assumed are those incident to the sport and even those are limited to those incidental risks that are “obvious and foreseeable.” Surely being knocked down from behind by a guard hired to assist you is not so obvious and foreseeable a risk, as to be an incident of skating at a commercial rink.

Bull Steamship Lines v. Fisher, 196 Md. 519, is a landmark case on the doctrine of assumption of risk. Although that case does not deal with a sport or game, it clearly lays down the same qualifications which we attached to an application of the doctrine in Nesbitt. In Bull, at 526, the Court of Appeals explained:

“ . . . that every risk is not necessarily assumed by one who works in a dangerous place or at a dangerous occupation. He assumes only those risks which might reasonably be expected to exist, and, if by some action of the defendant, an unusual danger arises, that is not so assumed. Where there is a dispute whether the risk is assumed or not, that question is usually left to the jury. ” (Emphasis added).

Our review of the record discloses sufficient evidence of negligence by the employee of appellees, not foreseen by appellant, to constitute a jury question.

Judgment reversed.

Case remanded for new trial.

Costs to be paid by appellees.

      . Appellants are the parents individually, and one as personal representative of the estate of Ava Johnson.


author: Orth, C. J.,

text:
    MONARCH RUBBER CO. et al. v. PHILIP WEINSTEIN
    [No. 430,
    September Term, 1975.]

      Decided January 6, 1976.

    The cause was argued before Orth, C. J., and Morton and Lowe, JJ.

      John J. Hirsch, with whom were Francis B. Burch, Attorney General, J. Howard Holzer, Special Attorney, Charles R. Goldsborough, Jr., Assistant Special Attorney and Paul J. Reed, Jr. on the brief, for appellants.

      Stanford H. Franklin, with whom were Gary A. Schapiro and Mandel, Rocklin, Franklin & Drue on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

STATEMENT OF THE CASE

On 19 March 1970, Philip Weinstein, an employee of the Monarch Rubber Co., sustained an accidental personal injury arising out of and in the course of his employment. Monarch secured workmen’s compensation to its employees by insuring the payment of such compensation in the State Accident Fund. On 12 June 1970 the Workmen’s Compensation Commission found that Weinstein was temporarily totally disabled as a result of the injuries. It ordered the employer and the insurer to “Pay unto the said claimant compensation at the rate of $55.00 per week, payable weekly, during the continuance of the temporary total disability of the claimant, subject to the provisions of the Workmen’s Compensation Law; compensation to begin on the 23rd day of March, 1970; provided, however, that if the injury results in disability of more than 28 days, compensation shall be paid from the date of disability, including the day on which the injury occurred, unless the employee was paid wages for such day; subject to credit for days for which wages were paid in full during temporary total disability; and subject to credit for days claimant worked and received regular wages during temporary total disability, if any; and rate of temporary total disability in excess of 42 days in the aggregate shall be $80.51.” Monarch, however, paid Weinstein his full wages in the amount of $155 per week until 13 February 1971. After that date, the Fund paid Weinstein $80.51 per week until 18 March 1974, which date was four years after the injury was sustained. From 13 February 1971 to 30 July 1972, Monarch paid Weinstein the difference of $74.50 between the award and his salary. The record does not reflect why Monarch discontinued its supplementation. On 24 April 1974 there was a hearing before the Commission on the issue “Has the claimant’s temporary total compensation benefits under Section 36 Paragraph 2, of the Workmen’s Compensation Law terminated as of March 19, 1974? ” as posed by the Fund, and on the “Nature and extent of disability” as posed by Weinstein’s attorney. On 10 June 1974 the Commission entered a “Supplemental Award of Compensation”. It found that Weinstein “was temporarily totally disabled from February 19, 1971 to date and continuing. . . .” It amended the order of 12 June 1970 “to read that the claimant’s temporary total disability began on February 19, 1971; and further ORDERED that Monarch Rubber Company, employer, and State Accident Fund, insurer, pay unto Philip Weinstein, claimant, compensation for temporary total disability beginning February 19, 1971 to date and continuing; said compensation to be paid at the rate of $55.00 per week for the first 42 days of temporary total disability and to be paid at the rate of $80.51 per week for the period of temporary total disability in excess of 42 days, in the aggregate; . . . .” The Fund requested a re-hearing, claiming that it was an error of law to find that the temporary total disability began on 19 February 1971 rather than 20 March 1970. Upon re-hearing on 3 July 1974 the Commission concluded that there was no error in law and on 22 July 1974 affirmed its order of 10 June 1974. Monarch and the Fund, feeling aggrieved by the order of 22 July, prayed the Baltimore City Court to review the action of the Commission as permitted by Code, art. 101, § 56 for the reason that the “Commission has not justly considered all the facts concerned, and has misconstrued the law and facts applicable to this case.” Weinstein answered, claiming that the Commission was correct in construing the law and the facts applicable to the case. Monarch and the Fund submitted as the issue to be determined: “On what date did the temporary total disability of the Claimant, Philip Weinstein, commence, as a result of his accidental personal injury of March 19, 1970?” Upon trial of the case on 12 March 1975 in the Baltimore City Court without a jury, the decision of the Commission was affirmed, and judgment nisi was entered in favor of Weinstein for costs. Judgment was made absolute on 17 March. Monarch and the Fund appealed to this Court.

ISSUE FOR DECISION

The issue for decision is whether Monarch and the Fund should be given credit as temporary total disability payments for the wages paid by Monarch to Weinstein from 19 March 1970 to 13 February 1971.

THE LAW

It once was that Code, art. 101, § 36 (2) included a provision that compensation for temporary total disability was “in no case to continue more than six years from the date of the injury or to exceed five thousand dollars in the aggregate.” Annotated Code of Maryland (1957). By Acts 1961, ch. 698, “six years” was changed to “four years” and “from the date of the injury or to exceed five thousand dollars in the aggregate” was stricken. The law then read that compensation for temporary total disability was “in no case to continue more than four years.” By Acts 1968, ch. 743, the provision was amended by adding the words “in the aggregate”. At the time Weinstein suffered his injury, § 36 (2) of art. 101 prescribed that compensation for temporary total disability was “in no case to continue more than four years in the aggregate.” We find it clear from the history of § 36 (2) of art. 101 that it was not the legislative intent after 1961 that compensation for temporary total disability could continue only for four years from the date of the injury. It could continue for “four years in the aggregate.”

“Compensation” under art. 101, § 67 (5) “means the money allowance payable to an employee or to his dependents as provided for in this article, and includes funeral benefits provided therein.” See Uninsured Employers’ Fund v. Booker, 13 Md. App. 591, 598 (1971).

DECISION

We believe that it was within the discretion of the Commission, upon a finding that Weinstein was temporarily totally disabled on 19 February 1971 to award compensation therefor to begin as of that date rather than as of the date of the injury, provided that Monarch or the Fund had not, in the meantime, paid workmen’s compensation benefits to Weinstein under the order of 12 June 1970. That is, if no payments by way of compensation had been paid before 19 February 1971, the Commission could require them to be paid for four years from 19 February 1971, provided, of course, that Weinstein was temporarily totally disabled for that period. This would be in accord with the liability imposed by art. 101, § 36 (2), and, if the compensation for the temporary total disability continued for not more than four years in the aggregate, neither Monarch nor the Fund had ground to complain. The question is, therefore, the status of the payments made by Monarch to Weinstein for the eleven months from 19 March 1970 to 13 February 1971.

The court below found as a fact that the monies received by Weinstein for the period 19 March 1970 to 13 February 1971 were gratuitously paid by Monarch. The court held as a matter of law that monies so gratuitously paid by an employer do not satisfy its liability to pay compensation under the Workmen’s Compensation Law. We hold that the court below was not clearly erroneous in its judgment on the evidence, Maryland Rule 1086, and was correct in its construction and application of the law. See Dent v. Cahill, 18 Md. App. 117 (1973); ABC Day Care Center v. Browne, 17 Md. App. 470 (1973).

The court discussed the evidence before it:

“The record and the testimony taken show that the claimant was a trusted and valued employee. During the eleven months he was paid his full salary by his employer, he was on call for consultation with his replacement, and at least on one occasion went to the factory to assist in setting up the operation he had been supervising.
The evidence indicates that even after the insurer began to pay temporary total, the employer made up the difference of his salary. At the time of the hearing the employer was paying life insurance and health insurance benefits for the employee even though he had not worked for more than four years.”

This was a fair capsule description of the evidence. It was not disputed that Weinstein performed no regular tasks for Monarch after his injury. He did not appear at Monarch’s plant on any but very infrequent and irregular occasions. Milton Seidman, Secretary of Monarch, testified that Weinstein had worked for Monarch for over ten years. He operated a machine and had seven or eight persons under his supervision. After he was injured he came to the plant once in January or February of 1971 because the man who had taken his place died and the vice-president and the superintendent of the company “wanted to get some things straightened out. They wanted to talk to him about the operation of the machine, at that time, because the two men who were leading the crew were out. He was out and the other fellow had died suddenly, and they spoke to him about an hour what he would suggest, and I understand he went out in the plant and suggested a few things, and that was it.” Other than that one occasion, Weinstein did not do any “work”. Seidman made plain that the reason Monarch continued to pay Weinstein his full salary was because Weinstein had been “a good employee”, whose “good will” Monarch was anxious to retain, and whom it wanted back when he was able to work. Seidman also gave as a reason for continuing the salary, “insurance purposes. We knew if we continued his pay to him this would reflect in the money we paid to the State Accident Fund for the insurance, and it would help us with our experience rating.” The primary motivation for paying the salary was made manifest on cross-examination of Seidman by Weinstein’s attorney. Counsel asked: “In other words, what you had given him was a pure gift as far as you were concerned?” Seidman replied:

“Well, I’ll tell you. We knew Phil a long time. We knew him before he came to Monarch Rubber Company, when he was with Chesapeake Shoe Company, and we knew this was a traumatic experience to him; on top of the fact there were other things that happened to him while he was in the hospital. In our long friendship with him, we didn’t want to add to his discomfort, so we continued to pay him.”

On this evidence, it is manifest that the evidence was sufficient in law to support a finding that the payments made for the eleven month period were gratuities.

In holding that the monies paid to Weinstein by Monarch during the eleven month period did not satisfy the liability to pay compensation under the Workmen’s Compensation Law, the court below expressed the belief that “As between the injured employee and the insurer who has been paid a premium for his insurance, if gratuitous payments are made they should inure to the benefit of the employee rather than the insurer.” It observed: “Neither counsel nor the court have found any decisions on this point [in Maryland].” A. Larson, The Law of Workmen’s Compensation, volume 2 (1975), discusses the issue arising when the employee draws full wages for a time after his injury and then is awarded compensation. According to Larson, the rule is: “If the payment of wages was intended to be in lieu of compensation, credit for the wages is allowed.” § 57.41. He points out: “However, since there is seldom any direct evidence on whether such an intention lay behind the payment, it must be inferred from the circumstances surrounding the payment.” Id. According to Larson, § 57.42, “The most important of these circumstances is the question whether the injured man really earned his wages. If he is paid his regular wage, although he does no work at all, it is a reasonable inference that the allowance is in lieu of compensation. An occasional court will say that such a payment is to be deemed a grauity, but this, in the absence of special facts indicating a charitable motive, is unrealistic. . . . The same principle should logically apply when the employee is given light or reduced work at his old pay. If that rate of pay is not ordinarily offered to workers performing those duties, the expenditure can only be explained as provision of regular financial benefits to a work-injured man — in other words, workmen’s compensation. * * * By contrast, if the employee is giving a dollar’s worth of labor for every dollar he is paid, the intention of the employer cannot be said to be that of supplying a substitute for workmen’s compensation; it is simply to purchase these services from this man on the same terms as from any other man. Therefore, credit is usually disallowed when it can be shown that the claimant earned the wages he was paid during the period in question.” (citations omitted).

We have examined representative cases on the point from other jurisdictions. No matter what result they reached, we think it fair to say that generally they are consistent with the “intention” principle used by Larson as the key to that entire class of cases. In other words, it is the intention of the employer, shown directly or inferred from the circumstances, which is the underlying principle. By the great weight of authority, credit against compensation liability is denied when independent evidence shows that the payment to the employee by the employer was meant to be neither compensation nor wages, but was gratuitous. Larson, § 57.44. We do not mean “gratuitous” here in the sense of “unearned wages” as it is used by some courts, but as freely given as charity, impelled by neither a wage nor a workmen’s compensation obligation. We have found that the judge below was not clearly erroneous in his judgment on the evidence that the payments Monarch made to Weinstein for the eleven month period were gratuitous in the sense we here use that word. It follows, therefore, that the judge was correct in ruling that those payments would not be applied as a credit against the liability for workmen’s compensation.

Some of the cases in other jurisdictions allowed payments made by the employer to the employee to be credited against compensation liability because of a controlling statute. Maryland has two statutes which relate to offsets of payments against workmen’s compensation benefits. One, Code, art. 101, § 33, provides that benefits furnished employees of the State or any other political subdivision thereof shall satisfy and discharge pro tanto or in full, as the case may be, the liability or obligation of such employer for any workmen’s compensation benefit. We construed and applied this statute in Nooe v. Mayor and City Council of Baltimore, 28 Md. App. 348. It is not applicable to the case before us. The other, Code, art. 101, § 19 (a) prescribes:

“Every policy of insurance covering the liability of the employer for compensation issued by a stock company or by a mutual association authorized to transact workmen’s compensation insurance in this State, shall contain a provision setting forth the right of the Commission to enforce in the name of the State of Maryland for the benefit of the person entitled to the compensation insured by the policy either by filing a separate application or by making the insurance carrier a party to the original application, the liability of the insurance carrier in whole or in part for the payment of such compensation; provided, however, that payment in whole or in part of such compensation by either the employer or the insurance carrier shall to the extent thereof be a bar to the recovery against the other of the amount so paid.”

We do not agree with the view of Monarch and the Fund that this statute operates to compel a credit against compensation benefits of the payments made by Monarch to Weinstein during the period 19 March 1970 to 13 February 1971. The statute concerns only “compensation” paid. As we have indicated, Code, art. 101, § 67 (5) defines “compensation” as “the money allowance payable to an employee or to his dependents as provided in this statute. . . .” We have found that the payments here made were not “compensation” but gratuities. Therefore, they were without the ambit of § 19 (a).

Judgment affirmed; appellants to pay costs.

      . Code, art. 101, § 56 (e) provides, inter alia: “If a motion for rehearing is filed, the time within which an appeal can be taken from the decision shall commence from the time of the ruling by the Commission on the motion.... If the appeal shall be heard subsequent to the ruling by the Commission on the motion, then the court shall determine all questions of fact and law arising under the original order or under such order, or orders as the Commission may have made pursuant to such motion.”

      . No question is raised about the monies representing the difference between the award and the wages which Monarch paid to Weinstein from 13 February 1971 to 30 July 1972.

      . The clause “but in no case to continue more than four years in the aggregate” was stricken from the law by Acts 1971, ch. 402. Section 2 of the Act declared “that this Act shall not apply to accidental injuries or occupational diseases occurring prior to July 1, 1971.”

      . The court said: “The employer, whether because of the loyalty of the employee in making himself available to help, even though he was seriously injured, or because of its gratuitous desire to protect a good employee, elected to pay his salary for eleven months.”

      . The court said: “I do not believe it was the intention of the legislature to thus unjustly enrich the Fund. ... The Fund should not be permitted to deprive the employee of his full benefits because of the employer’s largess.”

      . In sustaining an objection to a question asked at one point in the cross-examination the court said: “It’s quite clear on the record that Mr. Weinstein was a valuable employee as well as a person with close personal relationship, and that’s the reason the money was paid, apparently. The witness indicates that is unusual, as far as he was concerned.” This was a fair statement, we believe, and we note that its propriety was not disputed.

      . The court noted: “The only cases which might be held to be analogous to the instant case are those which follow the opinion of the Court of Appeals in Plank v. Summers, 203 Md. 552 [1954].” That case, as the court below pointed out, held that a tortfeasor is liable to the injured party for damages in an amount that is not affected by any other sources of help or reimbursement the injured party may have. The Court of Appeals apparently adopted as the modern majority rule that an injured person may recover for wages lost and medical expenses incurred during his incapacity even though such amounts were supplied by insurance, a contract of employment, or gratuitously. Id.., at 559. See discussion of the point at 556-562.

      . For examples of cases in which credit has been allowed against compensation liability, see: Herrera v. Workmen’s Compensation Appeals Board, 455 P. 2d 425 (Calif. 1969); Martin v. Travelers Ins. Co., 200 So. 2d 141 (La. App. 1967); Carpenter v. Employers Mutual Liability Ins. Co., 178 So. 2d 486 (La. App. 1965); Murphy v. Baton Rouge Coca Cola Bottling Co., Ltd., 165 So. 2d 636 (La. App. 1964); Howard v. Globe Indemnity Co., 147 So. 2d 912 (La. App. 1962); Rimbolt v. New Orleans, 150 So. 2d 871 (La. App. 1963); Walters v. General Accident and Fire Assurance Corp., Ltd., 119 So. 2d 550 (La. App. 1960); Lion Oil Co. v. Reeves, 254 S.W.2d 450 (Ark. 1952); Daoud v. Matz, 73 So. 2d 51 (Fla. 1954); Carlino v. U.S.F. & G., 199 So. 228 (La. 1940).
      For examples of cases in which credit has not been allowed against compensation liability see: Southwestern Bell Tel. Co. v. Siegler, 398 S.W.2d 531 (Ark. 1966); Looney v. Sears, 371 S.W.2d 6 (Ark. 1963); Trzoniec v. General Controls Co., 216 A. 2d 886 (R. I. 1966); Modern Equipment Co. v. Industrial Commission, 20 N.W.2d 121 (Wis. 1945); Middleton v. City of Watertown, 16 N.W.2d 39 (S. D. 1944); Hartford Accident and Indemnity v. Hay, 17 S.W.2d 904 Tenn. 1929).

      . See Baker v. Standard Rolling Mills, 131 N.Y.S.2d 739, 741 (1954).

      . See, for example, the Louisiana Statutes Annotated — Revised Statutes, 23:1206, “Voluntary payments: deduction from benefits”, which provides:
      “Any voluntary payments made by the employer or his insurer either in money or otherwise, to the injured employee or his dependents, and accepted by the employee, which, by the terms of this act, were not due and payable when made, may, subject to the approval of the court, be deducted from the payments to be made as compensation; provided, that in case of disability, such deduction shall be made by shortening the period during which compensation shall be paid, and not by reducing the amount of the periodical payments.”

      . We note that § 19(a) speaks only of a policy of insurance covering the liability of an employer for compensation “issued by a stock company or by a mutual association authorized to transact workmen’s compensation insurance in this State. ...” We have serious doubt that the State Accident Fund, Code, art. 101, §§ 70-84, is encompassed within § 19 (a) in any event, because it does not appear to be either a stock company or a mutual association. In the light of our holding, however, that the subsection is not applicable to the payments here considered, we need not reach the point and expressly do not decide it. It may be that the legislature intended to exclude the Fund from the provisions of § 19 (a), but if it did not, it may desire to consider clarifying language.