text:
    STANLEY P. MITCHELL v. STATE OF MARYLAND
    [No. 815,
    September Term, 1981.]

      Decided April 8, 1982.

      The cause was argued before Liss,  Couch and Bishop, JJ.

      Peter M. Levin, Assigned Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Ann E. Singleton, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A.. Swisher, State’s Attorney for Baltimore City, and H. Gary Bass, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

On October 14, 1979, Stanley P. Mitchell, appellant, was charged by separate indictments in the Criminal Court of Baltimore with first degree murder of Leo Shapiro, handgun violations, assault with intent to murder Minnie Shapiro, and robbery with a deadly weapon and lesser included charges. Appellant filed several pretrial motions which were heard before the Honorable James W. Murphy. All motions were denied. Appellant was then tried before Judge Murphy and a jury. The trial lasted a total of sis days and ended in a mistrial due to a hung jury. Appellant was thereafter retried before Judge Robert I. H. Hammerman and a jury in a trial which lasted for seven days. At the conclusion of the trial appellant was found guilty of first degree/felony murder, use of a handgun, unlawfully carrying or transporting a handgun, assault with intent to murder, and robbery with a deadly weapon. Appellant was sentenced to life imprisonment on the first degree murder conviction, fifteen years concurrent on the use of a handgun, and three years concurrent on possession of the handgun. The robbery with a deadly weapon and assault with intent to murder charges were held by the trial judge to have merged with the felony/murder. It is from these judgments that this appeal was filed. Appellant raises the following seven issues to be decided by this appeal:

I. Did the trial court err in ruling that the fact that the polygraph examinations given to appellant could not be presented to the jury?
II. Were appellant’s statements the involuntary product of inducements by investigators and therefore erroneously admitted?
III. Did the trial court abuse its discretion by permitting the State to call Howard Gersh as a rebuttal witness?
IV. Was improper use permitted of Jeanette Thompson’s testimony at appellant’s first trial, because there was insufficient foundation established for impeachment by prior inconsistent statements?
V. Was the trial court’s instruction of the limited role of the jury as trier of fact inadequate?
VI. Was appellant’s representation by trial counsel so inadequate that he was deprived of his Sixth Amendment right to counsel?
VII. Were the prosecutor’s remarks in argument beyond the scope of facts in evidence and prejudicial to appellant?

I.

It would serve no useful purpose to relate the facts of the brutal murder of the victim in this case except as they become necessary to consider the specific issues raised by appellant.

Appellant initially argues that the trial judge at the retrial erred in ruling sua sponte that the jury could not be informed either by the prosecution or defense that polygraph examinations had been given to the defendant on two occasions. He contends that even if the trial court’s ruling were correct as to the admissibility of evidence as to the results of the polygraph exam, it was nevertheless error to deprive the jury of the information that polygraph examinations were conducted. He suggests that the jury was the final arbiter of the voluntariness of statements made by him to the police and that in performing its function the jury was entitled to have before it all the evidence.

Appellant relies principally upon Johnson v. State, 31 Md. App. 303, 355 A.2d 504 (1976). In that case this Court held that it was reversible error to exclude from the jury’s consideration of the voluntariness of the appellant’s statements the fact that a polygraph was used in obtaining those statements. Judge Lowe, speaking for that Court, said:

A trial judge may not select which circumstances relative to voluntariness may go to the jury and which may not. Once its preliminary determination of voluntariness is made, see Jackson v. Denno, 378 U.S. 368 [84 S.Ct. 1774, 12 L.Ed.2d 908 (1964)], all of the relevant evidence bearing on voluntariness must then be submitted to the jury, Day v. State, 196 Md. 384, 399 [76 A.2d 729 (1950)].
"The practice in this state, approved in many cases, is that the court first hears evidence without the jury to determine whether a confession is voluntary and should be admitted. If it decides to admit it, the same evidence is then given to the jury, as it has the final determination, irrespective of the court’s preliminary decision, whether or not the confession is voluntary, and whether it should be believed. In so doing, the jury is entitled to have before it all of the evidence which affects the voluntary character of the document, and which the court passed upon in admitting it.” (Emphasis added). [31 Md.App. at 306],

On the face of the facts here recited, it would appear that the ruling of Judge Hammerman limiting the presentation to the jury of the information that defendant had submitted to two polygraph examinations might well be reversible error. However, a closer examination of the facts in Johnson and the case at bar requires a different conclusion. Johnson is readily distinguishable on the facts from this case. Additionally, Johnson predates the decision of the Court of Appeals in Kelley v. State, 288 Md. 298, 418 A.2d 217 (1980), where the Court of Appeals held:

[U]ntil such time as the reliability of this particular type of scientific testing [the polygraph] has been appropriately established to the satisfaction of this Court, testimony which directly or indirectly conveys the results of such tests should not be admitted. [288 Md. at 302],

Johnson also predates Akonom v. State, 40 Md. App. 676, 394 A.2d 1213 (1978), where we held that the results of a polygraph test cannot be admitted, even by stipulation, until it has first been demonstrated that the underlying process of the polygraph test is scientifically reliable. By relying on Johnson for the exclusionary principle we underscored the limited purpose for which admissibility would be recognized. See Akonom, supra, at 679.

In distinguishing Johnson from the case at bar, it must first be considered that the polygraph tests administered in Johnson were used by the police as a psychological tool in the interrogation process. An inculpatory statement was given to the police by the appellant after he had submitted to two polygraph examinations. The officer who conducted the interrogation was also the operator of the lie detector device. The interrogating officer would look at the polygraph results after each question and advise appellant that he had failed the test and that the officer didn’t believe him. The officer also questioned appellant as to what had caused the psychological responses indicating that he had made a false statement. After this procedure had been followed, the interrogator left appellant alone in the room with the polygraph for approximately twenty minutes. Then he returned with a second set of questions and repeated the same process.

Soon afterwards, while the machine was not functioning and appellant and the officer were completely relaxed and talking one-on-one, appellant gave the officer a statement which was inculpatory although short of a confession.

On the basis of the facts of the Johnson case as herein recited, we held as follows:

It is apparent that the use of the deception testing device was intended to produce a psychological effect upon the accused in order to obtain the relevant facts if known by appellant. Appellant’s expressed reason for confessing does not gainsay the test’s effectiveness. It is clear, however, that the use of such a procedure for that purpose would not as a matter of law require the exclusion of a confession so obtained, [citations omitted], involving a confession after several such tests. Indeed, when these facts became known to the trial judge out of the jury’s presence during a suppression hearing, he decided that such circumstances, even in addition to the other factors offered, did not overcome the preponderant proof by the State that the confession was freely and voluntarily given. [Citation omitted]. The judge having made that preliminary finding, the question of voluntariness should have then been submitted to the jury on the same evidence, although the jury. is to use a higher standard for determining voluntariness — it must find beyond a reasonable doubt that the confession was freely and voluntarily given. [Citation omitted]. [Emphasis in original], [31 Md. App. at 305],

In the instant case, however, the polygraph examinations were not used in the interrogation of Mitchell for the purpose of obtaining a confession. They were used to verify statements volunteered to the police by the appellant, who was not charged with the Shapiro murder at the time of either polygraph examination. Appellant was not a suspect in the Shapiro murder, nor was he at that time being interrogated as a suspect. Nothing in the record indicates that either the appellant or his counsel ever contended that appellant was coerced into making the statements because he was subjected to the polygraph tests. On the contrary, the record reveals that counsel for the appellant agreed that there was no allegation in this case that the polygraph in any manner influenced the defendant in making any inculpatory statements. Counsel sought to have the fact that the polygraph tests were administered to the defendant submitted to the jury because they influenced the police in their conduct toward the defendant.

That the administration of a polygraph test to a defendant may only be revealed to a jury where the issue of the voluntariness of a statement involves the alleged coerciveness of the administration of the test has been emphasized by the Court of Appeals in Kelley v. State, supra.

Johnson is limited to situations where the issue of voluntariness of a statement is before a jury, and where it is contended that the administering of a polygraph test is relevant to the question of whether the statement was voluntarily given. Only under these circumstances is the jury entitled to have the facts before it in order to assist them in deciding whether it is convinced beyond a reasonable doubt that the statements were voluntary. In the absence of such an issue being generated, however, neither the fact that a polygraph test was administered nor the results of the test should be admitted into evidence. To hold differently would encourage the indulgence by a jury in rank speculation to the detriment of either the State or the defense. Under the circumstances in the instant case, we find no error in the trial judge’s ruling.

II.

Appellant next contends that the trial judge at the suppression hearing erred in failing to suppress the statements which he made to the police. He argues that these statements were induced by promises given by the police officers and an Assistant State’s Attorney and were obtained from him without an opportunity to consult with his attorney. A review of the pertinent facts in the record shows that when appellant was arrested for several property crimes, he offered to give the police information about the Shapiro murder. In return for the information, appellant wanted a reduction in bail, the return of his car to his wife, and a transfer out of the Baltimore City Jail. After a consultation between the police and the Assistant State’s Attorney, it was agreed that if appellant’s information was "good” they would do what they could to honor appellant’s requests. It is clear from the record that appellant’s car was delivered to his wife and appellant was transferred to Harford County Jail. His bail was not reduced and appellant claims his first statement was induced by the promises of the police, not all of which were kept.

Appellant testified that the second statement, which was incriminating, was involuntary because one of the detectives had promised him that if he said he was the getaway driver, the appellant would not be charged with murder and he would be given immunity before the grand jury. He stated that a number of other promises and threats were made to him by the detectives of the homicide unit and on the basis of these he gave the incriminating statement. He also testified that he asked the police several times to be permitted to call his lawyer, but they would never permit him to do so. The three policemen who were involved in the investigation testified both in direct testimony and as rebuttal witnesses that no threats or inducements were offered by any of them, individually or by anyone in their presence. They each denied appellant’s testimony that he had requested an opportunity to call his lawyer.

Appellant argues that his first nonincriminating statement was induced by the promises of the investigators, one of which was not kept (reduction of bail). He suggests this is governed by Hillard v. State, 286 Md. 145, 406 A.2d 415 (1979). It is clear to us that Hillard is factually inapposite to the case at bar. In this case appellant, when arrested on a totally different charge, volunteered to give information about the Shapiro homicide in return for certain things which he requested the police to do for him. Appellant was not a suspect at the time he was questioned nor were the statements the result of a custodial interrogation of appellant for the Shapiro murder. The fact that the police and State’s Attorney were unable to secure a reduction of bail would not make appellant’s statement involuntary nor would it constitute improper coercion requiring the suppression of the statement.

With respect to the appellant’s incriminating statement, there was a sharp conflict between appellant and the State on the issue of whether promises or threats had been made in order to induce the statement. The contradictions in the testimony raised issues of fact to be determined by the trier of the facts who is the judge of the credibility of the witnesses. See Watson v. State, 35 Md. App. 381, 370 A.2d 1149 (1977), aff'd, 282 Md. 73, 382 A.2d 574, cert. denied, 437 U.S. 908, 98 S. Ct. 3100, 57 L.Ed.2d 1140 (1978). The trial court, in a lengthy and well reasoned finding, concluded that he believed the testimony of the police officers. We find no basis for holding that the trial judge erred in denying appellant’s motion to suppress.

III.

Appellant next complains that the trial court erred in permitting the Assistant State’s Attorney to testify as a rebuttal witness with respect to whether appellant’s wife testified before the grand jury. The issue is a minor matter entirely collateral to the question of appellant’s guilt or innocence. Appellant relies on Dobson v. State, 24 Md. App. 644, 335 A.2d 124 (1975), which is clearly distinguishable from the case at bar. In Dobson, the rebuttal testimony was initiated by the State on cross-examination and was both irrelevant and prejudicial. Here it was the appellant who, in his cross-examination of one of the officers, "opened the door” when he asked whether Mrs. Mitchell had been summonsed to testify before the grand jury. The officer replied that she had been summonsed two times but did not testify on either occasion. Carrying the matter even further, appellant offered testimony by Mrs. Mitchell that she had been summonsed twice but did not testify because "the attorney said he didn’t need me.” The Assistant State’s Attorney was then called in rebuttal and he testified that Mrs. Mitchell had refused to testify before the grand jury because of spousal immunity. Appellant then called Mrs. Mitchell’s attorney in surrebuttal. He testified that in his conversations with the State’s Attorney he had told him he would advise his client to claim spousal immunity so that he could get more time to investigate the case. This tempest in a teapot was not reversible error since appellant "opened the door” by calling Mrs. Mitchell to testify that the "State’s Attorney said he didn’t need me.” This was sufficient to justify the calling of the witness in rebuttal to explain why she v/as summonsed and did not testify before the grand jury. See Tate v. State, 32 Md. App. 613, 363 A.2d 622 (1976); Green v. State, 25 Md. App. 679, 337 A.2d 729 (1975).

IV.

Appellant contends that the prosecutor failed to lay a sufficient foundation before he impeached defense witness Jeanette Thompson with her prior inconsistent testimony given at appellant’s first trial. Appellant made no timely objection at trial. The failure to object amounts to a failure to preserve the issue for appeal. See Maryland Rule 1085.

V.

Appellant urges that although the trial court informed the jury that its instructions regarding appellant’s constitutional rights (i.e., as to burden of proof, reasonable doubt, and unanimity of the verdict) were binding, the instructions were cursory and insufficient because the court also referred to the advisory nature of the judge’s instructions and the jury’s function as judge of the law and the facts. Appellant failed to preserve this issue because he did not object to this portion of the court’s instructions at trial. Under these circumstances, this issue is waived on appeal. Rule 757; Sine v. State, 40 Md. App. 628, 394 A.2d 1206 (1979).

VI.

Appellant contends that his representation by trial counsel was so inadequate that he was deprived of his Sixth Amendment right to counsel. See Curtis v. State, 284 Md. 132, 395 A.2d 464 (1978). We have carefully reviewed the record and we agree with the trial court that counsel had "done an excellent and extremely conscientious job on your [appellant’s] behalf.” Appellant’s complaints about counsel are in our opinion frivolous.

VII.

Appellant, finally, has enumerated several remarks made by the prosecutor in closing argument which he contends were improper and prejudicial. Appellant has failed to preserve this issue for appellate review because he failed in his brief to indicate where in the record the alleged improper arguments appear. Rule 1031 c 4. That Rule requires that appellant’s brief contain a clear and concise statement of facts material to the determination of the questions presented on appeal and reference shall be made to the pages of the record or the transcript of testimony which support appellant’s contention. Appellant has failed to comply with this requirement on this issue and the issue is therefore waived. See von Lusch v. State, 31 Md. App. 271, 356 A.2d 277, rev’d on other grounds, 279 Md. 255, 368 A.2d 468 (1977); Van Meter v. State, 30 Md. App. 406, 352 A.2d 850 (1976).

In addition, appellant made no objection to the remarks of the prosecutor at trial and thereby deprived the trial court of the opportunity to take any remedial steps which might be necessary. See Holbrook v. State, 6 Md. App. 265, 250 A.2d 904 (1969); Rule 1085.

Judgments affirmed; costs to be paid by appellant.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    WILLIAM SPENCE v. STATE OF MARYLAND
    [No. 880,
    September Term, 1981.]

      Decided April 8, 1982.

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

      Louis P. Willemin, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Maureen O’Ferrall Gardner, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Ara Crowe, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

William Spence was convicted in a non-jury trial in the Criminal Court of Baltimore of robbery, burglary, assault and theft. He was sentenced to 15 years for burglary, 10 years for the robbery, 10 years for the assault and 18 months for the theft, all concurrent. Appellant first complains that the evidence was insufficient to support the convictions for robbery and burglary. He does not on this basis contest the convictions for assault or theft.

I Sufficiency of the Evidence

Dennis McCausland testified that he was at home with his family on June 14, 1980. At about 10:15 p.m. his son opened the door in response to a knock, despite his failure to understand the reply to the prior request for identification. Two strange men entered the apartment; one remained by the door while the other, the appellant, went into the living room. Appellant started walking around the apartment carrying a canvas bag in which he kept one hand. McCausland stated that he didn’t follow him because he didn’t know what was in the bag. While "wandering” around the apartment, the appellant picked up a hair dryer and an electric razor and put them in his bag. After appellant had completed his tour of the apartment, he returned to the living room where McCausland was sitting in a chair. McCausland’s gun was in its holster on a stand beside him. As appellant stood near him, looking out the window, McCausland grabbed the gun. Appellant jumped on him, and they fell to the floor while wrestling over the gun. When a noise was heard from outside, McCausland let go of the gun and appellant jumped up and ran out the door with it. He left the bag and the other items in the apartment.

Officer Arthur Cook testified that he responded to a call from McCausland. He recovered the bag which contained a pair of ladies shoes and stockings, a prescription vial with the name "C. Spence,” and some bills listed to an address in Baltimore. As Cook left the McCausland apartment, he received a call regarding a suspicious person knocking on doors in the same apartment complex. Upon responding to that call, he observed appellant approximately three-fourths of a block from the McCausland residence. About one-half hour to one hour had elapsed since the instant offenses. Cook searched appellant when arresting him but recovered nothing. The gun was never recovered.

Appellant testified that he was drunk when he went to the McCausland’s apartment. He stated that he had given $80 to a girl to buy him some drugs and she had disappeared. He was in the process of looking for her when he went to the apartment. Appellant stated that another young man had told him that he knew where the girl lived, and had helped appellant in his search. Appellant said he was carrying the bag, which belonged to his mother, because he did not want to leave it in the car. He denied picking up anything in the apartment. He explained that he was discussing his problem with the occupants when suddenly McCausland grabbed the gun and that he, the appellant, grabbed for it so as not to be shot. When he left the apartment, he threw the gun down the sewer. He then contimied knocking on doors looking for the girl with his money.

Appellant contends there was no evidence of intimidation as required for robbery by Douglas v. State, 9 Md. App. 647, 267 A.2d 291 (1970). The victim testified that he was fearful because the appellant had his hand inside the bag and therefore had made no protest while appellant walked into the bedroom and picked up the electric razor and the hair dryer. All that the law requires is that the circumstances be of such a nature as to "excite reasonable apprehension of danger, and reasonably ... cause the owner to surrender his property.” Giles v. State, 8 Md. App. 721, 723, 261 A.2d 806 (1970). The circumstances at issue warranted such apprehension. Secondly, the appellant argues the robbery conviction was improper because he was convicted of taking only the hair dryer and the razor and that he left them in the apartment. The evidence was that he had possession and control of the property sufficiently long for an asportation which is all that is required. Wiggins v. State, 8 Md. App. 598, 604, 261 A.2d 503, cert. denied, 258 Md. 731 (1970).

Appellant argues that there was no showing that he broke into the apartment or that he had an intent to steal at the time he entered. The best evidence of his intention when he entered, is his actions once inside the apartment. Inasmuch as a robbery was committed, that is sufficient to support an inference that he intended to commit the robbery when he entered. See Clark and Marshall, A Treatise on the Law of Crimes, § 13.07 (7th ed. 1967). With respect to the breaking and entering, the court could, and obviously did, interpret the appellant’s mumbling to gain entrance to the apartment as an artifice or fraud within the meaning of Brooks v. State, 277 Md. 155, 159-60, 353 A.2d 217 (1976). We agree.

II Announcement of Verdict Prior to Argument

The appellant asserts that as the trial court rendered a tentative verdict without affording his counsel the opportunity to argue the facts, there was ipso facto error mandating reversal of all of his convictions. Only one case has been called to our attention which went so far. People v. Dougherty, 102 Cal. App.3d 270, 162 Cal. Rptr. 277 (1980). Other cases where the accused was denied any right to final argument have quite properly been reversed. See, e.g., Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975); United States v. Walls, 443 F.2d 1220 (6th Cir. 1971); United States ex rel. Wilcox v. Commonwealth of Pennsylvania, 273 F.Supp. 923 (E.D. Pa. 1967); People v. Diaz, 1 Ill. App.3d 988, 275 N.E.2d 210-13 (1971); Yopps v. State, 228 Md. 204, 178 A.2d 879 (1962); Baines v. State, 37 Md. App. 505, 378 A.2d 177 (1977); Commonwealth v. McNair, 208 Pa. Super. 369, 222 A.2d 599 (1966). See also, Annot., Prejudicial Effect of Trial Court’s Denial, or Equivalent, of Counsel’s Right to Argue Case, 38 A.L.R.2d 1396 (1954). In Covington v. State, 282 Md. 540, 386 A.2d 336 (1978) and in Covington v. State, 34 Md. App. 454, 367 A.2d 974 (1977), the majority of the members of both the Court of Appeals and this Court indicated that in some circumstances the rendering of a verdict by a trial judge prior to his giving an opportunity for oral argument would not necessarily vitiate a conviction as the Court of Appeals so held in Rome and Modo v. State, 236 Md. 583, 204 A.2d 674 (1964).

With this brief background we now look at the instant case. At the close of the evidence, defense counsel renewed his motion for judgment of acquittal and informed the court that he would submit on the argument that he made on the earlier motion. The court continued the case until the next day and the judge said that he would review his notes and consider some of the legal questions raised by defense counsel. The following day, the court ruled on the motion for judgment of acquittal and then immediately announced his verdicts on each count of the indictments. Defense counsel immediately raised objection to his not having been afforded the right to argue. The court apologized and stated that he understood that on the previous day, defense counsel was submitting on the whole case. The court then struck the verdicts. Defense counsel requested a mistrial stating, "I don’t know how I can now get you to change those verdicts.” The court responded:

"Mr. Friedman [defense counsel], I’m not a jury and I note that I can be persuaded by argument and that I’m — if I am persuaded, it wouldn’t be the first time because I’ve ruled against a previously taken position that I’ve had on other occasions. I strike the verdicts and deny the motion for mistrial and I’ll be glad to hear whatever you have to say, sir.”

Defense counsel then delivered his closing argument. During closing argument the court questioned defense counsel, and following the argument specifically addressed points raised by defense counsel and explained his position with respect to those points. The court then concluded, "having considered your arguments, Mr. Friedman, I adopt by reference all of my previous comments and findings.” The court then re-entered the verdicts of guilty.

It appears that the occurrence at issue was, at most, an inadvertent denial of the right to summation which did not result in prejudice to the accused in view of the trial court’s subsequent consideration of appellant’s counsel’s argument. See People v. Cannon, 18 Ill. App.3d 781, 310 N.E.2d 673 (1974). Cf., State v. Rojewski, 202 Neb. 34, 272 N.W.2d 920 (1979) (permitting argument after verdict may satisfy constitutional rights). The judge stated that he was willing to change his mind and the record shows that he listened attentively to argument, questioned counsel and directly addressed those questions which had not been addressed in his previous ruling. If there is ever a case which should be affirmed where there is argument after a verdict has been inadvertently announced, this is it. In other words, the instant case is more like Rome & Modo v. State, supra, than it is like Yopps v. State, supra, where the trial judge indicated that further argument was completely futile.

Judgments affirmed.

Appellant to pay the costs.

      . In subsequent cases the California Courts have all but refused to apply the People v. Dougherty rule. See, e.g., People v. Manning, 120 Cal. App. 3d 421, 174 Cal. Rptr. 625 (1981).

        . Defense counsel strenuously argued the merits of the instant case with reference to robbery, theft and burglary but with reference to the assault he stated as follows: "As far as assault, that’s a closed question. I don’t think he intended to assault him hut if he did put him in fear by entering his house when he shouldn’t have, then it would be an assault, whether he intended it or not, because intoxication, it’s not a defense to an assault.” And in conclusion he further stated: "As far as the assault, I say that’s' another story. I think that it’s a closed question. I don’t think he intended to assault anybody but the intoxication is not a defense. Thank you, Your Honor.”
      As to this conviction, the error, if any, would be harmless beyond a reasonable doubt. See, Dorsey v. State, 276 Md. 638, 350 A.2d 665 (1976) and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).


author: Couch, J.,

text:
    TIMOTHY PATRICK KIRBY et al. v. C. D. HYLTON et al.
    [No. 887,
    September Term, 1981.]

      Decided April 8, 1982.

      The cause was argued before Liss,  Couch and Bishop, JJ.

      Albert D. Brault, with whom were Janet S. Zigler and Brault, Graham, Scott & Brault on the brief, for appellants.

      David A. Levin, with whom was W. Scott Sonntag on the brief, for appellee Trenchcraft, Incorporated. Robert C. Morgan, with whom were Roy L. Mason and Donahue, Ehrmantraut & Montedonico, Chartered on the brief, for appellee First Maryland Utilities, Inc.
   Couch, J.,

delivered the opinion of the Court.

After their nine-year old son, Timothy, was fatally injured when run over by a heavy pipe, while rolling down a hill, on land owned by a water and sewer company, First Maryland Utilities (FMU), Donald and Dorothy Kirby brought suit in the Circuit Court for Prince George’s County against FMU, a contractor, Trenchcraft, Inc., the developer of the housing development where the accident occurred, Hylton Enterprises, and C. D. Hylton and Irene Hylton. Following presentation of their case to a jury the trial judge (Mason, J.) ended the case by entering judgment in favor of the defendants, having granted motions for a directed verdict. Previously the Hyltons and Hylton Enterprises had been granted summary judgments. Appellants do not argue that the summary judgment motions were granted erroneously.

On appeal the Kirbys raise a host of issues concerning alternate theories under which they contend they were entitled to at least have the jury consider their case against FMU and Trenchcraft, Inc. They also contend the trial judge erred in certain of his evidentiary rulings.

The Facts

In 1967, Hylton Enterprises began developing Marlboro Meadows, a single family home community in southern Prince George’s County. It appears that the general pattern of the subdivision involved clusters of homes with open space surrounding the housing areas. Water and sewer service for the community had to be provided by the developer as there was no other such system available. Appellants allege that to accomplish this, Mr. Hylton caused FMU to be incorporated, and further allege that he was the sole stockholder. Whether this is true has no bearing on the case. In an open area beyond the dead end of Village Drive North, FMU established a water plant consisting of water tanks, which were enclosed by a fence, and two buildings, one having the appearance of a two story house, the other of a garage. There was evidence that when Mr. and Mrs. Kirby visited the development in 1968, they were shown a model upon which it was indicated that the open area referred to above could be used as a play area for children. The Kirbys purchased a home on Village Drive North and, in 1969, moved in with their three children. The property of FMU was never delineated as separate from the designated open space by fencing or otherwise. There was evidence that the whole area was used by neighborhood children for the playing of tag and impromptu sports and that they built clubhouses by a nearby stream. On occasion the children would go into the water plant itself to buy soda from a dispensing machine. The two plant personnel, Taylor and Dodson, were known by and were friendly with the children. In 1973 FMU decided to build a lagoon below the water tank to handle a problem of excess lime being discharged into a stream below the plant. This involved installing drain pipes from the water tank to the lagoon; a contract was entered into with appellee Trenchcraft, Inc. for the job. Thereafter, the drain pipes were delivered to the property and placed on the ground outside the fence surrounding the water tanks. For some five weeks Trenchcraft, Inc. was occupied with other work and could not begin the lagoon project. There was evidence that during this time Mr. Taylor became aware that some of the pipes had been moved, despite being very heavy (1,850 pounds). He explained to some of the children that they could get hurt playing on the pipes. On October 23,1973, as Mr. Taylor was leaving the plant to go pick up the mail, he observed some children below the plant building, pushing a pipe. According to him, he told them to leave and waited until they had done so. There was testimony from some children to the effect that they did not see Mr. Taylor that morning. In any event, it appears that Timothy and several other children (10 or more) pushed one of the pipes up an incline toward the dead end of Village Drive North. It was the intention of the children, having reached a terrace in the slope, to get inside the pipe and ride it down the hill. Unfortunately, Timothy, who had helped push the pipe up the hill, did not get inside the pipe or out of its way when it was pushed so that it would roll down the hill. The pipe ran over him causing fatal injuries. This suit ensued.

Contentions

In the main, appellants contend:

1) there was sufficient evidence from which the jury could have found Timothy was an invitee on the FMU property;
2) there was sufficient evidence from which the jury could have found Timothy was a licensee by invitation;
3) FMU assumed a duty to act and the trial judge erred in not submitting that theory to the jury;
4) the trial judge erred in rejecting appellants’ theory of strict liability;
5) the trial judge erred in not submitting to the jury their theory of liability based on violation of a statute;
6) the trial judge erred in directing a verdict in favor of Trenchcraft as there was evidence of a lack of due care on its part;
7) the trial court erred when it refused to permit the president of the appellee Trenchcraft to testify as to actions involving the pipes performed by the company following the accident;
8) the trial court erred in sustaining appellees’ objections to exhibits offered by appellants to illustrate representations made by Hylton Enterprises concerning the cluster open space located beyond Village Drive North.

The Law

Issues 1 and 2

Judge Digges, speaking for the Court of Appeals in Bramble v. Thompson, 264 Md. 518, 287 A.2d 265 (1972), set forth the guides and standards to be followed in determining liability in a matter of this kind. He stated in pertinent part:

"The liability of owners of real or personal property to an individual injured on their property is dependent on the standard of care owed to the individual and that in turn is contingent upon a determination of the individual’s status while on the property, i.e., whether he is an invitee, licensee, or trespasser. An invitee is one invited or permitted to enter or remain on another’s property for purposes connected with or related to the owner’s business. The owner must use reasonable and ordinary care to keep his premises safe for the invitee and to protect the invitee from injury caused by an unreasonable risk which the invitee, by exercising ordinary care for his own safety, will not discover. Morrison v. Suburban Trust Co., 213 Md. 64, 68-69, 130 A.2d 915 (1957); Peregoy v. Western Md. R.R. Co., 202 Md. 203, 207, 95 A.2d 867 (1953). A licensee is one privileged by virtue of proper consent to enter for his own purpose or convenience onto another’s property. There are two types of licensees, a bare licensee and a licensee by invitation. A bare licensee takes the property as he finds it and, like a trespasser, he is owed no duty by the owner except that he may not be wilfully or wantonly injured or entrapped by the owner once his presence is known. Crown Cork and Seal Co. v. Kane, 213 Md. 152, 157, 131 A.2d 470 (1957); Carroll v. Spencer, 204 Md. 387, 393, 104 A.2d 628 (1954); Peregoy v. Western Md. R.R. Co., supra. A licensee by invitation is a social guest who takes the premises as his host uses them. In general, the legal duty owed him by the host is to take the same care of the guest as the host takes of himself or members of his family. He .must exercise reasonable care to make the premises safe for his guest or he must warn him of known dangerous conditions that cannot reasonably be discovered and which in fact are not discovered by the guest. Telak v. Maszczenski, 248 Md. 476, 237 A.2d 434 (1968); Paquin v. McGinnis, 246 Md. 569, 229 A.2d 86 (1967). A trespasser is one who intentionally and without consent or privilege enters another’s property. 1 Poe, Pleading and Practice, 326-27, § 247 (6th ed. 1970); Restatement (Second) of Torts, § 158 (1965). The only duty of care a property owner owes to a trespasser, even one of tender years, is to refrain from wilfully or wantonly injuring the intruder. Mondshour v. Moore, 256 Md. 617, 619, 261 A.2d 482 (1970) and cases cited therein.” Id. at 521, 287 A.2d at 267.

We particularly note that these rules apply equally to personalty and realty, a matter of some import here. As Judge Digges later stated in Murphy v. Baltimore Gas & Electric Co., 290 Md. 186, 191, 428 A.2d 459, 463, n. 3: "Whether the property being used is personalty or realty is of no consequence in the present cases because it is clear that the same common law rule applies to both types of property. Bramble v. Thompson, 264 Md. 518, 521, 287 A.2d 265, 267 (1972); Hensley v. Henkels & McCoy, Inc., 258 Md. 397, 411, 265 A.2d 897, 905 (1970) (and cases cited in each).”

The appellants urgently contend that Timothy was either an invitee or licensee by invitation when upon FMU’s land. Be that as it may, we fail to see how that helps their cause since it is abundantly clear that Timothy was a trespasser as to the pipe — the very instrument which caused his death. Being a trespasser, there simply was no duty upon either Trenchcraft or FMU running to Timothy except not wilfully to injure or entrap him.

Furthermore, assuming arguendo, that Timothy was deemed to have been an invitee upon FMU’s land, when he and other children took the pipe from where it had been stored and rolled it up the slope, clearly he exceeded the scope of any invitation. In Aravanis v. Eisenberg, 237 Md. 242, 253, 206 A.2d 148, 154 (1965), the Court of Appeals stated in part:

"We have recognized that there may be a change of status, 'geographical or chronological’, of one who starts as an invitee. Levine v. Miller, 218 Md. 74, 79, 145 A.2d 418 (1958); Pellicot v. Keene, 181 Md. 135, 139, 28 A.2d 826 (1942); Gordon Sleeprite Corp. v. Waters, 165 Md. 354, 358, 168 Atl. 846 (1933). See Restatement, Torts § 343 Comment b (1932). While the cases cited deal with change of status from invitee to licensee, there is no reason in logic or justice, when circumstances warrant, why the transmutation ' cannot be from licensee to invitee.”

In Levine v. Miller, 218 Md. 74, 145 A.2d 418 (1958), the Court held that an injured child, who started out as an invitee upon another’s land, had her status changed to that of a licensee and possibly to that of a trespasser because she simply had no invitation to use the property in the fashion she did when she was hurt. Thus, in the instant case, even if Timothy may have been an invitee on the land, clearly he had no invitation to use the pipes and, when he did, he became a trespasser. Viewing the evidence in a light most favorable to the appellants, as we must, Impala Platinum, Ltd. v. Impala Sales (U.S.A.), 283 Md. 296, 328, 389 A.2d 887, 906 (1978), there simply was no evidence of the breach of any duty owed to appellants’ decedent and thus no liability on either appellee. We find no merit to this issue.

(3)

Liability for assumption of duty

The appellants next contend that FMU, through Taylor, had twice assumed a duty to act before the present incident and that it was a jury question whether that duty was carried out properly. While we have no quarrel with that proposition generally, see Kemp v. Armstrong, 40 Md. App. 542, 546, 392 A.2d 1161, 1164 (1978), cert. denied, 284 Md. 741 (1979) under the facts present here we do not believe it applies. The first time FMU is said to have voluntarily assumed to act was when Taylor became aware that someone had moved some of the pipes and that moving the pipes was dangerous. Therefore, he and Dodson had moved them back to their original position. Apparently this had to be done two or three times. From this the appellants argue that the jury could have found the replacement and immobilization of the pipes was done improperly. We believe the Kemp principle is inapplicable here because the record reveals no evidence from which it can be concluded that Timothy or any of the children felt the actions of Taylor and Dodson were designed to make the area safe to play upon. Indeed, the area would have been safe if the children had not proceeded to remove one of the pipes again and roll it around. Furthermore, the principle upon which appellants rely is never applicable when there is a superseding cause by the acts of third parties such as Timothy and his friends. See Peterson v. Underwood, 258 Md. 9, 16, 264 A.2d 851, 855 (1970) ("[AJlthough an injury might not have occurred 'but for’ an antecedent act of the defendant, liability may not be imposed if for example the negligence of one person is merely passive and potential, while the negligence of another is the moving and effective cause of the injury.”) (citation omitted).

The second occasion FMU is supposed to have assumed a duty to act was earlier on the day of the incident when Taylor saw children playing with one of the pipes, told them to leave, and watched them do so before leaving to get his mail. From this appellants argue that a jury could have inferred Taylor did not act carefully in determining whether all the children had heard his warning before he left the area. This contention is specious in that there simply is no evidence that Taylor assumed the duty of making the drainage pipes safe for the children to play upon. When a landowner orders a trespasser off his property, the owner does not assume a greater duty to make the property safe than he would otherwise owe the trespasser.

(4)

Strict liability

Appellants next contend that the appellees are liable on the basis of strict liability in tort. They correctly point out that Maryland reaffirmed the viability of strict liability in Yommer v. McKenzie, 255 Md. 220, 257 A.2d 138 (1969). The doctrine of strict liability imposes upon anyone who, for his own purposes, creates an abnormal risk of harm, the duty to guard against that harm. Restatement (Second) of Torts, § 519, Comment d (1977). Yommer quoted § 520 of a tentative draft of the Restatement (Second) of Torts:

"In determining whether an activity is abnormally dangerous, the following factors are to be considered:
a) Whether the activity involves a high degree of risk of some harm to the person, land or chattels of others;
b) Whether the gravity of the harm which may result from it is likely to be great;
c) Whether the risk cannot be eliminated by the exercise of reasonable care;
d) . Whether the activity is not a matter of common usage;
e) Whether the activity is inappropriate to the place where it is carried on; and
f) The value of the activity to the community.” Id. at 224, 257 A.2d at 140.

Yommer emphasized that the appropriateness of the activity in the particular place was the most crucial factor. Id. at 225, 257 A.2d at 141. "We accept the test of appropriateness as the proper one: that the unusual, the excessive, the extravagant, the bizarre are likely to be non-natural uses which lead to strict liability.” Id. at 226, 257 A.2d at 141 (footnote omitted). The Court illustrated the appropriateness requirement by quoting from Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197, 213, 4 A.2d 757, 765 (1939):

"So, it follows that if the escape be of oil, gas, electricity, explosives, sewage or water artificially accumulated and stored and damage is done to an adjacent property, the occupier is within the rule. In these instances the occupier was not using the land in the common and natural way, and had artificially produced the potential danger whose presence and continuation may well be attributable to negligence, according to the relative circumstances, rather than to the doctrine of liability without fault.”

The appellees interpret Yommer and Toy to mean that an owner of land is liable under the doctrine of strict liability only when something on his land escapes from his land onto the land of another, and does not apply when the instrumentality is harmless in and of itself, but is dangerous only when a third party’s actions initiate the harm. The appellees argue that, in the instant case, the pipe never left the land and that it was harmless until the children rolled it up the hill.

We find that we need not address the issues of escape and intervention because we do not think that the storage of a pipe in the instant case is an abnormally dangerous activity according to the criteria set forth in § 520 of the tentative draft and quoted in Yommer.

As the record makes clear, the storage of the pipe was not the kind of abnormally dangerous activity which was contemplated by Yommer and § 520. The activity did not involve a high risk of harm to others, which, if it occurred, was likely to be great and which could not have been eliminated by the exercise of reasonable care; the storage of pipe, in order to improve a residential water and sewage system, was neither totally uncommon to the neighborhood nor was it inappropriate to the particular place where it occurred; and it had at least some value to the neighborhood. The activity in this case, the storage of pipes to improve a residential water and sewerage system, is not in the same class as the activity in Yommer (large underground gasoline storage tank in close proximity to neighboring property owner’s source of well water was not a matter of common usage and involved an abnormally dangerous risk, 255 Md. at 224-225, 257 A.2d at 141). Because the activity did not entail an unreasonable risk of harm, the appellants must show negligence in order to recover and cannot rely on the doctrine of strict liability.

(5)

Violation of Public Service Commission regulation

The appellants’ next contention is that the trial judge erred in not allowing the jury to consider their theory of liability of FMU based on its violation of a regulation of the Public Service Commission. Title 20, subtitle 70 of these regulations, Chapter 08, subsection .01, provides:

"Each utility shall exercise reasonable care to reduce the hazards to which its employees, its customers, and the general public may be subjected.”

In Osterman v. Peters, 260 Md. 313, 316-17, 272 A.2d 21, 23 (1971), the Court of Appeals quoted from State v. Longeley, 161 Md. 563, 569, 158 A. 6, 8 (1932), wherein it had stated:

" 'The ordinance in this case was passed for the benefit of the public. Any violation of it subjects the owner of a quarry to a fine. But, before an individual can hold such owner liable for an injury alleged to have resulted from such violation, there must be shown a right on the part of the plaintiff, a duty on the part of the defendant with respect to that right, and a breach of that duty by the defendant whereby the plaintiff has suffered injury. Maenner v. Carroll, supra [46 Md. 193 (1877)]. A trespasser can acquire no such right except in case of willful injury. The mere violation of a statute would not give it. The effect of such violation is only to raise a presumption of negligence in favor of one entitled to assert it. See an interesting discussion in 27 Harvard Law Review, p. 333.’ 161 Md. at 569-70.”

In the instant case, while, arguably, Timothy initially may have been an invitee with relation to FMU’s land, it is abundantly clear that as to the pipe he was a trespasser. Thus no right on the part of Kirby or duty on the part of FMU was created and the mere violation of the regulation did not create a right or duty. Accordingly, the court was correct in not submitting this theory to the jury.

(6)

Liability of Trenchcraft

What we have just said applies to the next contention of the Kirbys. Here they contend that because Timothy was an invitee as to the land, no lesser duty was owed him by Trenchcraft. We disagree that this appellee incurred any liability because, regardless of his status as to the land, Timothy was clearly a trespasser as to the pipes and thus no duty was owed him by Trenchcraft, except not to entrap him or willfully injure him, neither of which situations exist here. So far as the alleged building code violation is concerned, what was said in Osterman, supra, is applicable here.

(7) and (8)

Evidentiary rulings

Appellants’ complaints with regard to two evidentiary rulings made by the trial judge are rendered moot by our conclusions above and need not be addressed.

There is yet another reason why we conclude there was no error in the trial court’s direction of a verdict in favor of the appellees. In our view appellants’ decedent was, as a matter of law, guilty of contributory negligence and/or assumed the risk of his actions. Both grounds were raised below in the appellees’ argument on the motion for a directed verdict but no decision on them was rendered because the court found there was no primary negligence. In any event,

"In order to justify a holding that the plaintiff was guilty of contributory negligence as a matter of law, 'the evidence must show some prominent and decisive act which directly contributed to the accident and which was of such a character as to leave no room for difference of opinion thereon by reasonable minds.’ Baltimore & O.R.R. v. Plews, 262 Md. 442, 454 (1971).”

Rafferty v. Weimer, 36 Md. App. 98, 107, 373 A.2d 64, 69 (1977). The test to be applied is whether the character of Timothy’s conduct which led to his death was commensurate with the conduct of a reasonably prudent person under the circumstances. See Witriol v. Pfueller, 247 Md. 177, 180, 230 A.2d 346, 347-48 (1967). The standard in this case is the standard of care that a reasonably prudent child of the same age, experience, and intelligence as Timothy would use under the circumstances. Taylor v. Armiger, 277 Md. 638, 645-46, 358 A.2d 883, 889 (1976).

"[A] plaintiff is said to have assumed the risk of injury when, with full knowledge and understanding of an obvious danger, he voluntarily abandons his right to complain by exposing himself to that particular risk. Kasten Constr. Co. v. Evans, 260 Md. 536, 544, 273 A.2d 90 (1971); Gibson v. Beaver, 245 Md. 418, 421, 226 A.2d 273 (1967); Bull Steamship Lines v. Fisher, 196 Md. 519, 525-26, 77 A.2d 142 (1950).” Hooper v. Mougin, 263 Md. 630, 633, 284 A.2d 236, 238 (1971).

Children only assume the risk of dangers whose existence they either know or should know, exercising the standard of care of a reasonably prudent child of the same age, experience, and intelligence. Taylor v. Armiger, 277 Md. at 646, 358 A.2d 238. While the distinction between contributory negligence and assumption of risk is a fine one, "assumed risk implies intentional exposure to a known danger, which may or may not be true of contributory negligence.” Sacks v. Pleasant, 253 Md. 40, 46, 251 A.2d 858, 862 (1969) (citing cases).

Assuming the truth of all the appellants’ credible evidence, and all inferences fairly deducible therefrom, Impala Platinum, Ltd. v. Impala Sales (U.S.A.), 283 Md. 296, 328, 389 A.2d 887, 906 (1978), we think that reasonable minds could not differ in concluding that Timothy appreciated the obvious dangers, which, unfortunately, came to fruition, attendant to pushing a 1,850 pound drainage pipe up an incline and, therefore, assumed the risk and its consequences. In the alternative, we think that reasonable minds could not differ in concluding that a reasonably prudent child of the same age, experience, and intelligence as Timothy would not have pushed such a heavy object up a hill because of the obvious danger of it rolling back downhill without him having time to get out of the way, and was, therefore, contributorily negligent.

Judgment affirmed; costs to be paid by appellants.

      . Restatement (Second) of Torts, § 520 (1977), sets forth the same criteria in slightly different wording as the tentative draft quoted in Yommer v. McKenzie, 255 Md. 220, 224, 257 A.2d 138, 140 (1969).


author: Morton, J.,

text:
    WILLIAM W. COTTMAN, III v. STATE OF MARYLAND, DEPARTMENT OF NATURAL RESOURCES et al.
    [No. 922,
    September Term, 1981.]

      Decided April 8, 1982.

    The cause was argued before Gilbert, C. J., and Morton and Mason, JJ.
    Submitted on brief by Elise Davis for appellant.
    Argued by Michael J. Scibinico, II, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Thomas A. Deming, Assistant Attorney General, on the brief, for appellees.
   Morton, J.,

delivered the opinion of the Court.

The State of Maryland, through its Department of Natural Resources (Department), leased some 190 acres of land in Montgomery County, Maryland, to the appellant, William W. Cottman, III, for the purpose of permitting him to farm the acreage. The term of the lease was for the period November 1, 1976, to October 31, 1977, and contained the following provision:

"This lease will continue in effect from month to month after the expiration of the above term. This lease may be terminated upon thirty (30) days written notice by either party.”

Without serving any formal written termination notice on the appellant, the Department thereafter invited the submission of bids from members of the public to determine who would lease the 190 acres upon the expiration of appellant’s lease. Appellant submitted a bid, but a lease was awarded to another bidder effective July 1, 1978.

Appellant then brought suit against the Department in the Circuit Court for Anne Arundel County alleging breach of the lease. The Department’s demurrer to appellant’s bill of complaint was sustained. Appellant appealed to this Court and we reversed the action of the circuit court in sustaining the Department’s demurrer. See Cottman v. Dep’t of Nat. Resources, 44 Md. App. 224 (1979). Thereafter, formal written notice of termination was sent by the Department to appellant on December 28, 1979.

The case came on for trial on the merits in June, 1980. The trial judge found that the Department had breached its lease to appellant by entering into the lease with a third party without having first given appellant written notice of termination. The trial judge then went on to say:

"However, since at the time the Department breached the lease it was for a month-to-month tenancy terminable on 30 days notice, the Court holds that the damages properly allowed for such a breach are limited to those damages which could reasonably be expected during the 30 day notice period. Since the Court finds as a matter of fact that the Complainant had no crops planted at the time of the breach, and would not have planted crops until several months thereafter, the Court holds that the Complainant suffered no damages from the breach of the lease.”

In this appeal appellant presents the single issue: "Was the trial court correct in limiting damages to the thirty (30) day notice period required by the lease vice the two year period between the unlawful ejectment and when the required written notice was given in late December, 1979?”

In support of his contention that the trial judge erred in limiting damages to the thirty day notice period, appellant refers us to the following language in Impala Platinum v. Impala Sales, 283 Md. 296, 330 (1978):

"In this State three rules are followed which limit the recovery of unrealized profits: (1) a plaintiff must show that a breach by the defendant was the cause of the loss; (2) damages may not be awarded unless, when the contract was executed, the defendant could have reasonably foreseen that the loss of profits would be a probable result of a breach; and (3) lost profits may not be recovered unless they can be proved with 'reasonable certainty,’ ....”

Appellant argues that "at the time the contract was executed, Appellee DNR could have reasonably foreseen that if it unlawfully ejected Appellant from the property, that Appellant would suffer a financial loss, or as this rule is stated in the alternative, the losses arose naturally from the breach of the contract itself. . . .”

On the other hand, the Department asserts that "there is no Maryland case which directly applies the Impala standard to a month-to-month tenancy as is involved in the instant case.” It argues, however, that "the trial court’s decision is a direct corollary of the second prong of the Impala test ...” and refers us to several cases from other jurisdictions which directly address the issue.

In Colt Lanes of Dover, Inc. v. Brunswick Corporation, 281 A.2d 596 (Del. Supr. 1971), it was said, at 599:

"If a tenant át will is wrongfully evicted without notice, he may recover damages for a period extending to the time when the tenancy might have been terminated by the landlord, but for no longer. 52 C.J.S. Landlord and Tenant § 461 (4) a, p. 341.
In Ashley v. Warner, 11 Gray 43, 77 Mass. 43 (1858), the Supreme Court of Massachusetts found, if a tenant at will, entitled to three months notice under the governing law, was wrongfully evicted, '[a]s * * * his tenancy might be determined by three months notice, his damages for the loss of the premises were limited to that time.’
This is essentially the situation here where the unwritten demise without express term put the defendant in possession on a month-to-month basis, a tenancy from month-to-month being 'in the nature of a tenancy at will.’ 51C C.J.S. Landlord and Tenant § 145, p. 437. The defendant can at a maximum be entitled to damages from the time of its eviction, if such it was, to the end of the next term of one month. See Ludwigsen v. Larsen, 227 Mich. 528, 198 N.W. 900 (1924).”

Again, in Osborn v. Commanche Cattle Industries, Inc., 545 P.2d 827 (Okl. App. 1975), the Court said, at 831:

"The courts of other jurisdictions are virtually unanimous in holding that breach of a contract terminable at any time upon notice entitles the aggrieved party to recover only those net profits which he could have earned during the notice period; he may not recover profits for the entire term of the contract.”

We think these cases reflect a sound approach to the law of damages applicable to the case at bar. We see no statement in Impala Platinum which would require us to hold otherwise.

Here we are confronted with a lease that could have been terminated by either party upon thirty days written notice. The notice could have been given during the one year term of the lease or after it subsequently had become a month-to-month lease. All the appellant could expect under the terms of his lease was a thirty days written notice by the Department of its intention to terminate the lease. Certainly, appellant cannot expect to receive in profits, by way of damages, any more than he would have gained had the terms of the contract been fulfilled.

"It is well settled that every injury to the rights of another imports damage, and if no other damage is established, the party injured is at least entitled to a verdict for nominal damages.” Baltimore v. Appold, 42 Md. 442, 457 (1875). See also M & R Builders v. Michael, 215 Md. 340, 345 (1958); Gilbert Const. Co., v. Gross, 212 Md. 402, 412 (1957); Mason v. Wrightson, 205 Md. 481, 489 (1954). While we agree with the trial judge there was no evidence that the appellant suffered any damages from the breach of the lease, we reverse the judgment and enter a judgment for appellant and award damages in the amount of one cent.

Judgment reversed and judgment entered for appellant and damages awarded in the amount of one cent; costs in this court and in the trial court to be paid by the State of Maryland.


author: Gilbert, C. J.,

text:
    ROSE MARY WADMAN, Trustee under the Will of Alton J. Wadman et al. v. THOMAS R. McBIRNEY et al.
    [No. 978,
    September Term, 1981.]

      Decided April 8, 1982.

      The cause was argued before Gilbert, C. J., and Morton and Bishop, JJ.

      John M. Bray, with whom were Laura A. Kumin and Schwalb, Donnenfeld, Bray & Silbert, David A. Sacks and Sacks & Kohn on the brief, for appellants.

      James J. Cromwell, with whom were David L. Terzian and Spriggs, Cromwell, Myers, Nicholson & Spire, P.A. on the brief, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

THE ISSUE

Ordinarily "proxy fights” are thought of as occurring in large corporations when one individual or group endeavors to oust incumbent management and, thus, to take over and control the corporate direction. The instant appeal is a battle over the validity of a proxy and is illustrative of the fact that such corporate combat is not limited to conglomerates but also occurs in small corporations.

The specific question put to us is whether a ten-year "irrevocable proxy” given to one stockholder by another constitutes a "sale” of that stock within the meaning of a covenant restricting transferability of stock. The underlying issue is whether the appellants will emerge in control of the operation of the corporation or whether Lawrence B. Marsh, one of the appellees, will continue to run the company.

THE FACTS

Our review of the record discloses that Thomas R. McBirney, Lawrence B. Marsh, and Alton Wadman were the stockholders in a corporation known as "Marsh-McBirney, Inc.” The entity was formed in 1971. Initially each of the three stockholders owned 5,000 shares of Class A common stock and 818 shares of Class B, non-voting common stock.

The charter provided for 99,900 shares of common stock, 19,900 shares of which were Class A. Only 15,000 shares of Class A stock were issued.

The charter contains the following alienation of transferability article:

"SEVENTH:
(a) No stockholder shall sell, assign, convey, transfer or dispose of the Class A capital stock of this Corporation, either to another stockholder of the Corporation or an outsider, unless and until he shall have first offered the said share or shares of Class A stock in writing to the board of directors for the benefit of the remaining Class A stockholders of the Corporation.
(b) Said remaining Class A stockholders, within thirty days from the notice in writing to the board of directors of intention by the selling Class A stockholder, shall have the right to purchase the said share or shares of stock at the same price at which the selling Class A stockholder has obtained a bona fíde offer to purchase.
(c) A Class A stockholder shall initially have the right to purchase shares offered for sale in the same proportion that the number of Class A shares already owned by him bears to the total Class A stock issued; provided, that a Class A stockholder shall have the right to purchase a greater proportion than aforesaid, at such time as another Class A stockholder has failed or refused to purchase his proportionate part of the shares offered for sale.
(d) No transfer, other than by death, of the Class A shares of the Corporation shall be valid or binding on the Corporation unless the foregoing requirements have been met.”

At some point in time, Marsh sold 534 shares of his Class A common stock to Irving Hill. We infer that particular transaction complied with Article Seven of the corporate charter.

Wadman died and his shares became the property of a testamentary trust with Rose Mary Wadman as Trustee. Mrs. Wadman was elected a director of the corporation.

Apparently some discord arose because of the fact that Marsh and McBirney were salaried employees of the company, and received certain "perks,” such as the use of motor vehicles leased by the corporation. In addition, Marsh and McBirney were awarded periodical bonuses. Mrs. Wadman, even though a director, received no income from the corporation. Dividends have never been paid to the stockholders, and while the company has shown a profit, salary increases and bonuses for Marsh and McBirney have apparently precluded the declaring of dividends.

Suggestions by Wadman and Hill pertaining to the operation of the business were generally rejected by the majority vote of the Board of Directors.

Marsh became disenchanted with his remuneration in light of the fact that he considered himself to be the major contributor to the corporate well-being. He expressed his dissatisfaction to McBirney and talked of leaving the company. McBirney said that he feared that if Marsh left, the company would fail, so McBirney decided to seek other employment, thus leaving Marsh with the Company. Under date of February 15,1980, McBirney notified stockholders in writing; of his intent to sell 3,500 shares of his Class A common stock at and for the sum of $28 per share. The stock was purchased by each Class A stockholder in the manner prescribed by the corporate charter. After the sale by McBirney, the Class A common stock was owned as follows:

McBirney 1,500 "
Marsh 6,029 "
Mrs. Wadman as Trustee 6,750 "
Total 15,000 "

Contemporaneously with the notice to sell the 3,500 shares of Class A common stock, McBirney sold his entire 818 shares of Class B non-voting common stock to Marsh for $2.50 per share or a total of $2,045. McBirney agreed with Marsh that he, McBirney, would execute a ten-year "Irrevocable Proxy” of McBirney’s remaining 1,500 shares of Class A common stock. There is no provision in the charter against proxies. The proxy, which was signed on March 19, 1980, provided, inter alia:

"KNOW ALL MEN BY THESE PRESENTS, that I, the undersigned a stockholder of MARSHMcBIRNEY, INC. a corporation organized and existing under the laws of the State of Maryland (hereinafter sometimes call [sic] the "Corporation”), do hereby irrevocably make, constitute and appoint Lawrence B. Marsh, 12842 Littleton Street, Silver Spring, Maryland 20906, with full power of substitution, my true and lawful attorney and proxy, for and in my name, place and stead, for a period of ten (10) years from the date hereof to vote upon the fifteen hundred (1,500) shares of "Class A Voting Common Stock” owned by me or standing in my name on the books of the Corporation as my proxy, at any and all meetings of the stockholders of MARSH-McBIRNEY, INC. held within the aforesaid period, upon any and all matters of any kind of nature whatsoever which may be presented, considered, and voted upon at any annual or special meeting of stockholders, or any adjournments thereof, of the said Corporation, including the signing of my name as such stockholder to any waiver or consent certificate which the laws of the State of Maryland may require or permit, as fully and with like effect as I might or could have done if personally present, hereby ratifying and confirming all that my said attorney and proxy may do in my name, place and stead. The instrument shall not be deemed to be a general power of attorney and does not authorize any action which would require the undersigned to be personally responsible for any debt or obligation of the Corporation.”

The proxy which was made binding on the McBirney’s heirs and personal representative was conditioned in part on Marsh’s remaining as President of Marsh-McBirney, Inc.

Wadman and Hill filed a polychotomous bill for declaratory judgment in the Circuit Court for Montgomery County in which they alleged that McBirney and Marsh had, under the circumstances, effected a sale in violation of Article VII of the charter; that the "sale” violated the "rights” of the plaintiff-appellant "to purchase their respective proportionate shares” of the 1,500 shares of stock over which Marsh was granted McBirney’s proxy. Additionally, the declaration alleged that McBirney and Marsh "breached the contract” created by Article VII of the corporate charter; that Marsh "intentionally and with actual malice” induced McBirney to "breach his contractual obligation” under Article VII so that Marsh would "obtain control” of the corporation; that McBirney and Marsh conspired to give Marsh control of the corporation and, thus, "defraud” Wadman and Hill; and that McBirney and Marsh were guilty of "fraudulent conduct.”

Wadman and Hill asked that the proxy be declared null and void, that they be entitled to "their proportionate shares” of the McBirney’s retained 1,500 shares, and that the plaintiffs-appellants be awarded compensatory and punitive damages totaling $4,250,000 together with attorney’s fees.

McBirney and Marsh answered the count pertaining to the validity of the irrevocable proxy and demurred to each of the other four counts. At the same time, the defendant-appellees moved for summary judgment as to the validity of the irrevocable proxy. Wadman and Hill then filed for summary judgment as to the same count.

Judge Stanley B. Frosh denied Wadman’s and Hill’s motion for summary judgment, granted that of McBirney and Marsh, caused judgment to be entered thereon, and sustained the demurrer as to the remaining counts, with leave to amend. Wadman and Hill elected to stand on their declaration as pleaded and appealed all rulings to this Court.

If we hold the proxy to be valid, the other counts of the declaration will fall of their own weight. Persons do not "conspire” to do a legal act by lawful means; if the proxy is valid, it does not constitute a "sale” in violation of appellants’ "rights.”

Admittedly, McBirney did not want to see Wadman and Hill in control of the corporation because he feared that Marsh would leave the company, thereby causing its demise. From the record before us, we glean that Marsh was the major contributor to the corporation growth. We, however, do not intimate, since we have no knowledge, whether Marsh’s departure from the company would materially affect its operation and vitality.

I.

Appellants have cited us to a number of cases, but they are all concerned with restrictions on the transfer of stock or the meaning of "sale” within the scope of the Securities Exchange Act. None are apposite to the instant case. Indeed, we have not been directed, by either party, to any case directly on point, and we have found none.

Maryland Corp. & Assn’s Code Ann. § 2-506 permits shareholder voting by proxy unless otherwise proscribed by the corporate charter. Needless to say, the charter of McBirney-Marsh, Inc. did not prohibit proxy voting else there would be no case before us.

Section 2-507 of the Corp. and Assn. Art. provides:

"(a) Each share entitled to one vote. — Unless the charter provides for a greater or lesser number of votes per share or limits or denies voting rights, each outstanding share of stock, regardless of class, is entitled to one vote on each matter submitted to a vote at a meeting of stockholders. However, a share is not entitled to be voted if any installment payable on it is overdue and unpaid.
(b) Manner of voting; proxies. — (1) a stockholder may vote the stock he owns of record either:
(i) in person; or
(ii) By written proxy signed by the stockholder or by his duly authorized attorney in fact.
(2) Unless a proxy provides otherwise, it is not valid more than 11 months after its date.
(3) Unless otherwise agreed in writing, the holder of record of stock which actually belongs to another shall issue a proxy to vote the stock to the actual owner on his demand.”

The section does not proscribe "irrevocable” proxies, nor does it limit the life of the proxy if the proxy, itself, provides for a life span of "more than 11 months.” Thus, insofar as section 2-507 is concerned, a proxy may be endless if the proxy, itself, so states.

Even if the "irrevocable” proxy in the matter sub judice satisfies the statute, is it, nevertheless, void as against public policy? While we find that rhetorical question academically inviting, we shall not pursue the inquiry because we believe the proxy involved in the instant case to be other than "irrevocable.”

The adjective "irrevocable” is defined as "Incapable of being retracted or revoked; irreversible.” A reading of the proxy, quoted above, that is the case of the matter now before us, reveals that the proxy terminates upon:

1. the expiration of ten years from March 19, 1980;
2. the occurrence of the following events:
a. Marsh, during the life of the proxy acquires 51% of the Class A voting stock of McBirney-Marsh, Inc.
b. Marsh’s employment with McBirney-Marsh, Inc., is ended voluntarily or otherwise.
c. Marsh shall at any time during the life span of the proxy own or control less than 20% of the Class A voting common stock of the corporation.
3. Marsh’s return of the proxy to McBirney.
4. Marsh’s death before the expiration of the proxy’s life time.

Simply because the parties to the proxy style it as "Irrevocable” does not mean that others will see it similarly. Camouflage may change the appearance of something, but not its composition.

We think the proxy in the instant case is not irrevocable, nor violative of the statute.

There then remains a question of whether the "Irrevocable” proxy is, in the instant case, a sale, conveyance, transfer, or disposition of McBirney’s interest in the 1,500 shares of Class A voting common stock.

A "proxy,” in the final analysis, is similar to a power of attorney. It is a written device used by one person to deputize another person to act in the proxy giver’s place or stead, but unlike a power of attorney, it is usually confined to some corporate act, matter, or deed. As such it grants a privilege or license to the holder of the proxy to vote the shares of the owner of that stock in a manner satisfactory to the proxy holder. A holder of a proxy, however, is not entitled to any dividends that may be declared upon the stock for which he holds a proxy, nor to any distribution in liquidation. Moreover, the holder of the proxy has no right to execute the option with respect to that stock afforded in Art. VII of the corporation charter.

The restrictions in the McBirney-Marsh corporate charter on the right to "sell, assign, convey, transfer or dispose” of Class A common stock involve incidents of ownership that are concerned with title to the stock. All that is proscribed by that restrictive language is any transfer of title by way of sale, assignment, conveyance, or other disposition of the title. The restrictive. covenant does not prohibit proxies which are the only incident of ownership that can be delegated without transferring title.

Since, in the instant case, there was no transfer of title, in any form, there was no violation of the restrictive covenant.

II

Count II is predicated on a premise that the proxy given by McBirney to Marsh was in violation of the corporate restrictions. Since that is not the situation, Count II must fall.

Count III asserts that Marsh induced McBirney "to breach his contractual obligations” to the appellant. The allegation assumes that the giving of a proxy constitutes a breach of the restrictions contained in Article Seven. Inasmuch as we have determined that a proxy such as here, does not breach the covenant against sale, transfer, and the like, that Count must also fall.

Count IV asserts that McBirney and Marsh entered into a conspiracy, a dolose, the heart of which was to preclude Wadman and Hill from acquiring a proportionate share of McBirney’s 1,500 shares. Appellants, of course, had no interest in the shares, nor will they acquire any rights to the shares until and unless McBirney decides to transfer ownership of the stock, something McBirney has not indicated a desire to do.

The final count of the declaration, Count V asseverates an alleged "shift [of] ownership and voting control of a majority” of voting stock of the company. The issuance of the proxy by McBirney to Marsh is not illegal. Count V is as defective as Counts II, III, and IV.

We hold that Judge Frosh did not err in sustaining the appellee’s demurrer to the Wadman and Hill declaration.

Ill

The appellants next argue that they should have been allowed access to the records and files of the attorneys for McBirney and Marsh. Appellants, seemingly likening themselves to some sort of grand jury probe, have decided they should be entitled to invade the files and records of the appellees’ lawyers so as to examine those records and files for possible fraud against the appellants.

Prior to the giving of the proxy in the case now before us, Marsh and McBirney each sought and obtained separate counsel for advice as to the best way to handle the 1,500 shares of McBirney. Neither counsel represented the appellees in the trial court or here.

Apparently perceiving a form of conspiracy between the appellees as well as their attorneys, the appellants employ a sort of civil unindicted conspirator charge and assert that they are thus entitled to examine counsel’s files and records. We disagree. While there is justification for the erosion of the client-attorney privilege when the attorney is an alleged conspirator or codefendant in a criminal cause, we flatly refuse to extend that concept to civil litigation. Inquisitional explorations, in civil cases, into the files pertaining to the attorney’s clients should not be permitted lest privilege, the basic ingredient of the attorney-client relationship, be destroyed.

Once the profession is affected by the loss of the privileged communication, the practice of law, as it now exists, is doomed just as if it were infected by an incurable metastasized cancer.

IV

Finally, appellants argue that the costs of certain depositions should not have been assessed as part of the court costs.

Md. Rule 415 b provides:

"It shall be discretionary with the court to tax as part of the costs of the case all or any part of the cost of any other deposition taken by any party to the action.”

Although no trial was actually held because of the court’s preliminary rulings, the judge was acting within the bounds of his discretion in assessing the costs of the extensive deposition taken by appellants of the appellees.

The appellants simply allege that Judge Frosh abused his discretion. We do not see it that way. The costs of the deposition might well have been considered by the judge to be unnecessary expenditures of monies and, therefore, properly assessable against the party generating that cost. We observe no abuse of discretion.

Judgment as to count I affirmed.

Order sustaining demurrer to counts II, III, IV and V affirmed.

Assessment of costs of deposition against appellants affirmed.

Costs to be paid by appellants.

      . We are unable to state whether the restriction on transferability appears on the stock certificate itself inasmuch as there is no indication in the record one way or the other. But see Md. Corp. & Ass’ns (1975) Code Ann. § 2-211 (d).

      . Throughout the record, Mr. Hill is referred to as "Judge Hill.” We were told on oral argument that Hill is a member of the Federal Bench in Los Angeles, California.

      . Originally, the stock was purchased for $1.00 per share.

      . The Class B common stock was not subject to restriction on transferability.

      . The proxy also provided in part, not here relevant, that:
      "In the event that the aforesaid Lawrence B. Marsh or any entity or person controlled by Lawrence B. Marsh, directly or indirectly, shall at any one time in the future own of record more than fifty-one (51%) per cent of the issued and outstanding shares of the "Class A Voting Common Stock” of the Corporation (or any other shares of capital stock issued with respect thereto, whether by distribution, recapitalization, or merger), AND, THEREAFTER, if the following two (2) events occur simultaneously, namely, (1) that Lawrence B. Marsh shall not be employed by the Corporation, AND (2) that Lawrence B. Marsh, or any entity or person controlled by Lawrence B. Marsh, directly or indirectly, shall own of record less than twenty (20%) per cent of the issued and outstanding shares of the "Class A Voting Common Stock” of the Corporation (or any other shares of the capital stock issued with respect thereto, whether by distribution, recapitalization or merger), then, in the event that all three (3) of the aforesaid events shall have taken place, the instant Irrevocable Proxy may be revoked at the option of Thomas R. McBirney provided he gives written notice thereof to Lawrence B. Marsh.” (emphasis supplied)

      . There are, of course, many cases regarding the irrevocability vel non of proxies under the common law. There are also a few cases concerning the life span of a proxy decided on the basis of a state statute markedly dissimilar to that of Maryland. None of these cases is of guidance to us in the instant matter.

      . The general view is that a proxy is not irrevocable unless it is coupled with an interest. See 5 Fletcher, Cyclopedia of the Law of Private Corporations, (1976 ed.) § 2062.

      . The American Heritage Dictionary of the English Language (1970) p. 693. To the same effect see:
      1. Incapable of being recalled or revoked: past recall. Webster’s Third New International Dictionary, Unabridged 1976 ed.
      2. Incapable of being revoked or repealed; unalterable. Funk & Wagnalls New Practical Standard Dictionary, Britannica World Language Edition, 1955.
      3. That cannot be called, brought, fetched or taken back; that is beyond recall or recovery. That cannot be revoked, repealed, annulled or undone; unalterable, irreversible. Oxford, English Dictionary on Historical Principles, 1901.
      4. That which cannot be revoked or recalled. Black’s Law Dictionary. 5th ed. 1979.

      . The arrangement also falls well short of qualifying as a voting trust. That corporate tool is "a device whereby two or more persons owning stock with voting powers, divorce the voting rights thereof from the ownership, retaining to all intents and purposes the latter in themselves and transferring the former to trustees in whom the voting rights of all the depositors in the trust are pooled.” Ringling v. Ringling Bros.-Barnum & Bailey Combined Shows, 29 Del. Ch. 318, 49 A.2d 603, 608 (1946), modified, 29 Del. Ch. 610, 53 A.2d 441 (1947).