text:
    THOMAS LAYMAN et ux. v. JESSE GNEGY et ux.
    [No. 787,
    September Term, 1974.]

      Decided May 6, 1975.

      The cause was argued before Thompson, Davidson and Mason, JJ.

      John C. Sullivan and Robert Kazary for appellants.

      Jack R. Turney for appellees.
   Thompson, J.,

delivered the opinion of the Court.

Jesse Gnegy, Jr. and Alma Gnegy, his wife, sued at law to establish a right of way over a driveway traversing the land of Thomas Layman and Mary Layman, his wife. In the declaration the Gnegys also asked that an injunction be issued to require the Laymans to remove a fence blocking their use of the right of way. The case was tried before Chief Judge Stuart F. Hamill in the Circuit Court for Garrett County. Judge Hamill granted the injunction on the basis that the driveway in question was a public road. We affirm, not because the road in question was a public highway but because the Gnegys obtained a right of way over it by virtue of the language in their deed.

The record shows that James Ray Beegley and his wife owned a farm containing 273 acres on the west side of U.S. Route 219 in Garrett County. In 1958 the Beegleys built a second dwelling [now the property of the Gnegys] on their property approximately 100 feet north of their then-existing home. They constructed a driveway leading from Route 219 to the rear of the new dwelling; the driveway went behind the new home and connected with a roadway which led from Route 219 to the rear of their farm. The Beegleys had used this road as a farm road and as a driveway to their dwelling house. Thus, there was a complete U turn from Route 219 to the rear of the new dwelling and back out to Route 219. One part of that U turn is the roadway, the use of which is in dispute. In 1963, the Beegleys conveyed the entire farm to Eli and Esther Yoder. In 1964 the Yoders leased the new dwelling to Jesse Gnegy and his wife, the appellees. Some two years later on March 16, 1966, that property was conveyed to the Gnegys. In the deed the Gnegys were not expressly given the right to use the farm road in question but the metes and bounds description contained a call to “the north margin of a private drive” [the road in dispute] as the southern boundary of their lot and to U. S. Route 219 as the eastern boundary of their lot which was approximately 150 feet by 150 feet in size. On July 13, 1973, the Yoders conveyed the rest of the original farm to the Laymans, the appellants herein. In that deed there was no reference to a right of way over the farm road. Soon thereafter the Laymans constructed a fence in such manner as to block the Gnegys from using that portion of the farm road which constituted one prong of the U turn around their dwelling house.

Testimony showed that in previous years the farm road in question had led back to another farm known as the Ace Coddington Farm and had been used by the owners of that farm for access to their property. About 1940, however, the owners of the Coddington Farm constructed another entrance from another highway and no longer used the roadway over what is now the Laymans’ property. The testimony also showed that at one time, apparently on the appellants’ farm, there had been a Lutheran church and cemetery; that the church no longer existed and had not been used since the 1880’s, and that although the cemetery was somewhat grown up there were occasional visitors, particularly on Memorial Day, who made use of the farm road. Visits for this purpose currently numbered one or two a year. Mr. Layman testified that during his ownership only one or two persons had used the road to go back to the graveyard- and had requested his permission to do so. Mr. Gnegy testified that he had used the road in question continuously and regularly from the time he first leased the property in 1964. There was evidence that the Coddington Farm fronted on another public highway but there was no evidence that the farm road in question led to that highway. The record shows that at one time a previous owner of the farm had used the older dwelling house as a post office.

We do not think this evidence was sufficient to establish that the farm road was a public highway for two reasons. First, the only possible public users of the road were those who were coming to the post office at the time when the original dwelling house constituted the local post office and those persons attending church and visiting the graveyard. In those instances it appears to us that the use was by virtue of (1) the ownership of the fee by the operators of the post office and (2) private rights of way in the church and in the graveyard lot owners rather than by virtue of a public right. Obviously the use of the road as access to the Coddington Farm by the owners and visitors to that property was not a public use. Secondly, even if we were to assume that there was a public use of the roadway, it could not have become public by prescription unless its termini were public places. Gray v. Shell Realty Corporation, 219 Md. 531, 150 A. 2d 255 (1959) and O’Brecht v. State, 145 Md. 171, 176, 125 A. 539 (1924).

As we have indicated however, we base our decision on the fact that the deed from the Yoders to the Gnegys conveyed the right of way to use the farm road along the edge of their property out to Route 219. Maryland has long followed the majority rule that where a street or other way is called for as a boundary and the grantor owns the fee in the street, the grantee gets a right of way by implication to the nearest public road. See 46 A.L.R.2d 461. The doctrine in Maryland can be explained by quotations from two cases. In Atlantic Construction Corp. v. Shadburn, 216 Md. 44, 52-53, 139 A. 2d 339 (1958) the Court said:

“When Key resubdivided the property, placed the plat upon record and sold off the lots to Miller, Miller acquired certain rights in the portion of the alley not deeded to him in fee, which no subsequent action of Key, or its grantees of the remaining property, could affect, even had they so attempted. Moale v. Baltimore, 5 Md. 314, 324. The lots bounded upon the center of the alley, which was not then, and probably has not yet been, opened by the public authorities. As the conveyance to Miller granted the property by lot numbers only, a portion of the alley was deeded to him in fee, but this was held by him subject to the servitude of its use in common with other lot owners. Lippincott v. Harvey, 72 Md. 572, 577, 19 A. 1041. He also obtained, by his deed, an easement by implication in a portion of the alley not conveyed to him in fee. The easement, which was subsequently acquired by the Shadburns, included the right of ingress and egress over the alley in the rear of lots 1108, 1109, 1110 and 1111.”

The Court said in Neal v. Hopkins, 87 Md. 19, 28-29, 39 A. 322 (1897):

“It must be noted there is no evidence that the lot of the defendants nor any of the lots of other persons were sold with reference to maps or plats. The dedication of Willis street to the extent of the lots of Perry, Kleckner and Mace was effected only on the doctrine of an implied covenant that the street called for by the deeds shall always remain open as a public street. Having thus set apart the street for a public use, ‘it would be a violation of good faith to the public and those who have acquired private property to revoke the dedication, and for that reason it cannot be done.’ Cincinnati v. White, 6 Peters, 438. But such dedication does not create a right of way over all the lands of the vendor, the ‘true doctrine’ being ‘that the purchaser of a lot calling to bind on a street, not yet opened by the public authorities, is entitled to a right of way over it, if it is of the lands of his vendor to the full extent and dimensions only until it reaches some other street or public way.’ The dedication ‘must necessarily be measured by the limits of the right’ the purchaser has acquired by virtue of his grant. Hawley’s case, 33 Md. 280; M. & C. C. v. Frick, 82 Md. 83. It is therefore clear that prior to the time of the establishment of the sidewalk the dedication of Willis street did not extend further eastwardly from Locust street than the eastern corner of the Mace lot, no lots binding on Willis street having been sold by the plaintiff to the east of that point. If this be so, the act of plaintiff in constructing the sidewalk on his own property, at the end of a cul de sac, for the purpose of widening a street that later on he proposed to dedicate to the public, cannot be regarded as an act from which to infer that he then intended to appropriate the sidewalk to the public. Such intention must be clear from all the circumstances of the case. McCormick v. City of Balto., 45 Md. 523; Tinges v. Baltimore, 51 Md. 600.”

See also Flersheim v. Baltimore, 85 Md. 489, 36 A. 1098 (1897); Moale v. Baltimore, 5 Md. 314, 61 A. 276 (1854); White v. Flannigain, 1 Md. 525, 54 AD 668 (1852). We so held in Clevenger v. Kulla, 22 Md. App. 448, 323 A. 2d 623 (1974).

At oral argument appellant argued that the doctrine of these cases cannot be applied in the instant case because here the call in the deed was to a private road as opposed to a public street. We have been unable to locate cases supporting such a view. The rule was pointed out clearly in Beechwood v. Reed, 438 Pa. 178, 265 A. 2d 624, 626 (1970):

“It is the law of this Commonwealth that if an open, public street is called for as a boundary the grantee takes title in fee to the middle of the street if the grantor has title to it. Where the street called for as a boundary is not a public highway nor dedicated to public use, the grantee does not take title to the middle of it but acquires an easement by implication over it.
s*< íj* % ifc
“Although Green Lane Road had once been a public road, it was the subject of vacation proceedings in 1932. It therefore reverted to the status of a private road which could be the subject of an implied easement. Chambersburg Shoe Manufacturing Company v. Cumberland Valley Railroad Company, 240 Pa. 519, 87 A. 968 (1913). (The question of the creation of a public easement by prescription will be discussed below.) As nothing in the record rebuts the presumption that when such a description appears in a deed such an easement is to be implied, both of the courts below were correct in holding that some easement does exist.”

To the same effect see Casella v. Sneirson, 325 Mass. 85, 89 N.E.2d 8 (1949) and Gish v. City of Roanoke, 119 Va. 519, 89 S. E. 970 (1916). We, therefore hold that, in the circumstances of this case, the deed from the Yoders to the Gnegys, by making reference to the private roadway as the southern border of appellees’ property created in the appellees a right of way over the aforesaid roadway out to Route 219. Of course, such a right of way by implication cannot arise when the deed makes clear that no such intention existed. Condry v. Laurie, 184 Md. 317, 41 A. 2d 66 (1945). See also Mt. Sinai v. Pleasant Manor, 254 Md. 1, 253 A. 2d 915 (1969). There is nothing in the appellants’ deed in the case at bar to indicate a contrary intention.

It is entirely possible that the Gnegys obtained an easement by implication under another theory. That theory was succinctly discussed by Hammond, J., later Chief Judge of the Court of Appeals, in Dalton v. Real Estate & Improvement Co., 201 Md. 34, 46-47, 92 A. 2d 585 (1952):

“Nevertheless, when the owner of property has used one part for the benefit of another in such manner that there would arise a presumption that an easement existed if the two parts had been held by different owners, then, upon conveyance of the part so used, there is a g-uasi-easement which will be granted by implication as an easement to the purchaser of the other or dominant part, provided the use has been such that the easement would be classed as continuous and apparent, and necessary to the reasonable enjoyment of the property conveyed. Eliason v. Grove, 85 Md. 215, 36 A. 844, Burns v. Gallagher, 62 Md. 462. Continuous and apparent easements in the early law did not include ways. However, the doctrine of guasi-easements has been extended to include established ways where they are reasonably necessary to the enjoyment of the property conveyed, and this Court has so held. See Dineen v. The Corporation, 114 Md. 589, 79 A. 1021; McConihe v. Edmonston, 157 Md. 1, 145 A. 215; Tiffany, ‘Real Property’, 3rd Ed., Chapter 14, Sections 780 and 785; 4 Md. Law Review 88.
“If the Court finds the way not sufficiently ‘apparent’ or not necessary to the ‘reasonable enjoyment’ of the land granted, a grant will not be implied. Duvall v. Ridout, 124 Md. 193, 92 A. 209, L. R. A. 1915C, 345.
“A distinction has been maintained in the law between implied grants and implied reservations. If an easement is continuous and apparent and necessary to the reasonable enjoyment of the premises granted, it will be implied that the grant included the easement. However, if a grantor intends to reserve any rights or uses in or over the tenement granted, he must reserve them expressly, and the only exception is of easements, including w'ays, of actual, strict necessity. The reason for the last rule is said to be that a grantor cannot derogate from his grant. There is a discussion of the two rules and examples of their application in Slear v. Jankiewicz, 189 Md. 18, 54 A. 2d 137. See also Mitchell v. Seipel, supra.”

See also Millson v. Laughlin, 217 Md. 576, 142 A. 2d 810 (1958); McConihe v. Edmonston, 157 Md. 1, 145 A. 215 (1929); Burns v. Gallagher, 62 Md. 462 (1884).

While we do not rely on the quasi-easement theory as giving rise to an easement by implication, that theory adds obvious support to our holding that the grantors in the deed to the appellees intended that they should enjoy the use of the private roadway out to the public highway.

Judgment affirmed.

Appellants to pay the costs.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    JAMES EDWARD JOHNSON et al. v. CHRYSLER CREDIT CORPORATION GIRARD FORCELLA, JR. et al. v. FORD MOTOR CREDIT COMPANY
    [No. 789,
    September Term, 1974.]
    [No. 790,
    September Term, 1974.]

      Decided May 6, 1975.

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

      Robert S. Sherman and Erwin Frenkil for appellants.
    No. 789, Fenton L. Martin, with whom were Roger A. Clapp and Clapp, Somerville, Black & Honemann on the brief, for appellee Chrysler Credit Corporation.
    No. 790, Lewis A. Noonberg, wdth whom were Paid V. Niemeyer, David F. Tufaro and Piper & Marbury on the brief, for appellee Ford Motor Credit Company.

       Note: Certiorari denied, Court of Appeals of Maryland, August 1, 1975.

   Lowe, J.,

delivered the opinion of the Court.

As part of the Retail Installment Sales Act of 1941, the Legislature prohibited holders of such agreements from including in them what has come to be known as an “insecure” clause. Md. Code, Art. 83, § 130 (d) reads:

“§ 130. Provisions forbidden in instruments.
No seller, sales finance company, or holder shall at any time take or receive any instrument from a buyer, or from any surety or guarantor for the buyer which contains:
(d) Any provision for repossession of the goods or for the acceleration of the time when any part or all of the time balance becomes payable, if the condition of such repossession or acceleration is in substance that the seller or holder deems himself to be insecure;”

To ensure compliance therewith, the Legislature created an unusual civil penalty in addition to criminal liability for knowing violators of the Act. Art. 83, § 149 (c) and § 150. It provides for the forfeiture of “any finance, delinquency or collection charge” and as written in § 149 (b) reads:

“(b) Forbidden provision in instrument renders same void. — Whenever any instrument contains any provision prohibited by § 130, such provision shall be absolutely void, and any person taking such instrument in violation of § 130 shall not collect or receive any finance, delinquency or collection charge from the buyer in connection with the transaction to which such instrument relates.”

Appellants James Edward Johnson, et al., No. 789, and Girard Forcella, Jr., et al., No. 790, sued Chrysler Credit Corporation, appellee in No. 789 and Ford Motor Credit Company, appellee in No. 790, alleging that the respective instruments held by them contained the prohibited “insecure” clause. Appellants do not allege that the clause has been exercised. Apparently deeply concerned over the plight of fellow victims, they brought this action on behalf of themselves and “a class of persons similarly situated” to recover damages of $70,000,000.00 against Chrysler and $120,000,000.00 against Ford. Appellees each demurred and filed motions for summary judgment primarily opposing the class actions. The demurrers were granted without leave to amend.

Appellants, who have the same counsel, argued their cases in concert. They raise six questions:

“1. Can the appellant maintain a class action as a matter of right?
2. Does the Retail Installment Sales Act (Article 83, Sections 128-153 of the Maryland Code) provide for or contemplate only action for individual relief?
3. Do the appellants have to show damage to each unnamed member of the proposed class or any member of the proposed class before class action status can be granted?
4. Under Maryland Law, does a class exist in this case?
5. Would it be possible and/or practical to provide such notice as is consistent with all applicable Maryland Rules and justice to each potential member of the proposed class?
6. Is class action status the only and/or best remedy under the circumstances?”

Ample briefs and exhaustive arguments reflected a broad spectrum of approaches to class action cases by courts throughout the country. Though interesting and informative, most were helpful only as indicating the premature withering of a budding new proceeding. We find the issue here hardly as involved nor nearly as complex as it was presented to be. The issue on appeal narrows itself to whether the trial judge abused the discretion afforded him in Md. Rule 209 b when he sustained both of appellees’ demurrers. The court found:

1. Appellants could not maintain the class suit as a matter of right.
2. There was no showing of damage to unnamed members from the exercise of the disputed clause.
3. Appellants had “not clearly shown that such a class of injured plaintiffs exists in this case as would justify granting class action status to them”; and
4. Even if such class exists, adequate notice to all members of the class would be neither possible nor practical.

I and II

Appellants’ first argument totally digresses from the question they ask. The argument does no more than complain that, in appellants’ view, the trial judge did not analyze the case in sufficient detail. They contrast the published opinion of Judge Marshall Levin in Siegrist v. The Continental Insurance Company, No. 134610 (Superior Court of Baltimore City, Nov. 10, 1972) in Daily Record, Nov. 27, 1972, at 2, col. 1. It would appear that appellants covet more the result reached in Siegrist than the commendable analysis it exhibits. Siegrist illustrates rather the care and precision necessary before allowing a class action — a procedure which takes from individuals the right to control their own cases and indeed, as here, may effect anomalous results.

While other jurisdictions have had numerous occasions to consider class action suits, we find a dearth of authority on the subject in Maryland. Only once have our appellate courts treated the question, and then only peripherally. Hooks v. Comptroller, 265 Md. 380. As slender a reed as it provides, we grasp whatever guidance we can find.

In Hooks, the Court of Appeals analyzed the statute which provided the basis for the claim, to determine whether the appellant had a right to utilize the class action device. The Court found that “while he may act in his own behalf, there is no warrant in the Act permitting him to advance a claim in behalf of others similarly situated.” Hooks, 265 Md. at 383.

Further, we have examined the Retail Installment Sales Act as the Court of Appeals did the Retail Sales Tax Act, and we arrive at a similar conclusion. There is no language which expressly or impliedly suggests that the Legislature intended to provide class relief as a matter of right for violations of the Act. Since the class rule was not in effect when the statute was adopted we would be hard pressed to read Legislative intent as contemplating a procedure that did not exist.

Ill, IV, V and VI

The Supreme Court has also recently imposed some limitations on class actions. Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 40 L. Ed. 732. The Court’s analysis is persuasive, but not binding since it treats class actions under Rule 23, F.R.C.P. rather than our own Md. Rule 209. Although the rules are not dissimilar, Federal Rule 23 goes into substantially more detail than does our own. Nevertheless, several of the problems the Supreme Court treated were considered by the trial judge below in the present case.

Notice to Members of the Class

Appellants estimated in argument that in excess of 100,000 members of the class existed within the two suits filed. While seeming to admit their own inability to cope with the enormity of costs notice would entail, they suggest that “The trial judge could have ordered appellee[s] ... to place the necessary funds in escrow to give the adequate notices . . . with the provision that same would be deducted from the share of those members who apply for and receive funds and credits from appellee.”

In Eisen Mr. Justice Powell wrote:

“In the absence of any support under [the class rule] petitioner’s effort to impose the cost of notice on respondents must fail. The usual rule is that a plaintiff must initially bear the cost of notice to the class. The exceptions cited by the [trial court] related to situations where a fiduciary duty preexisted between the plaintiff and defendant, as in a shareholder derivative suit. Where, as here, the relationship between the parties is truly adversarial, the plaintiff must pay for the cost of notice as part of the ordinary burden of financing his own suit.”

Preliminary Hearing

Appellants’ arghment that notice costs be borne initially by appellee points up other procedural difficulties with this case. To do what appellants ask would require a preliminary ruling on the merits, else how justify the pecuniary burden placed upon appellee. It would also be necessary to determine whether unnamed members of the class would be more harmed than helped, a determination which would likewise require some preliminary inquiry into the merits, to answer questions left unanswered by the Legislature:

a) How past interest would be computed and repaid;
b) Whether loans could be called in by note holders;
c) Whether appellees could be required to continue to extend loans without future compensation (due process); and
d) Depending on the answers to previous questions, whether many of the class would be reluctant to lose their financing in a tight money market or pay interest rates which may have risen since the original loan?

Appellants themselves contend that these are but a few of the many reasons why the trial judge should have held a preliminary hearing before ruling on the class question.

Again we agree with the Supreme Court, which could:

“. . . find nothing in either the language or history of [the class rule] that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action. Indeed, such a procedure contravenes the Rule by allowing a representative plaintiff to secure the benefits of a class action without first satisfying the requirements for it. He is thereby allowed to obtain a determination on the merits of the claims advanced on behalf of the class without any assurance that a class action may be maintained.
Additionally, we might note that a preliminary determination of the merits may result in substantial prejudice to a defendant, since of necessity it is not accompanied by the traditional rules and procedures applicable to civil trials. The court’s tentative findings, made in the absence of established safeguards, may color the subsequent proceedings and place an unfair burden on the defendant.” Eisen, 417 U. S. at 177-178, 40 L. Ed. at 748-749.

We conclude as we commenced. The question before us is whether the trial court abused its discretion. We think it did not.

Although in some circumstances the class action may be an important public interest device, in others it contravenes the more traditional notions of an individual’s jurisprudential rights. As a potential and perhaps unwilling litigant, an individual must assert affirmatively his right to be left alone, the very articulation of which reveals its incongruity. While we recognize the procedural vacuum a class suit may fill, we commend care in applying such relief, illustrated both by its meticulous grant in Siegrist, supra, and its denial here. Among those disenchanted with the class procedure is the court which authored Buford v. American Finance Co., 333 F. Supp. 1243 (N.D. Ga.).

Judgments affirmed; costs to be paid by appellants.

      . Laws of Md., 1,941, Ch. 851 now codified as Md. Code, Art. 83, §§ 128 through 153, Subtitle “Retail Installment Sales.”

      . Appellant Forcella raised an additional question:
      “7. Does the failure of the lower court to rule on appellants petition for injunctive relief require a remand by this court?”
      The relief prayed thereunder was to restrain appellee Ford Motor Credit Company from “collecting any monies which it may claim in violation of the Maryland Retail Installment Sales Act, particularly Article 83, Sections 130 and 149 (b).” Our affirmance of the trial court’s holding that appellants do not represent the members of the class relieves us from responding to appellant’s seventh question. Additionally, any response would be a decision on the merits preliminarily, which Eisen v. Carlisle and Jacquelin, 417 U. S. 156, strongly discourages.

      . “It appears that the initial enthusiasm for the Rule has been tempered by recognition of the practical problems inherent in its use.” Abercrombe v. Tunis, Inc., 1972 Trade Cas. par. 74, 118 (S.D. Fla.).

      . The orders expressly reserve appellants’ rights to proceed as individuals.

      . Appellants somewhat confusingly ask the question,
      “1. Can the appellants maintain a class action as a matter of right?”
      then follows the very next sentence:
      “This threshold issue presents somewhat of a puzzle to the Appellants since both Appellants and Appellee have agreed in their briefs filed in the lower court that this action is not one of . right but of discretion.”
      We join appellants’ puzzlement since their argument is completely unrelated to the question.

      . While complimenting the trial court’s analysis procedurally we express no opinion as to the propriety of the result reached.


author:
Thompson, J.,
      Smith. J.,

text:
    ELIZABETH Y. BYRUM et vir v. CARLTON MARYOTT et al.
    [No. 813,
    September Term, 1974.]

      Decided May 6, 1975.

      This cause was argued before Thompson and Powers, JJ., and Marvin H. Smith, Associate Judge of the Court of Appeals, specially assigned.

      John C. Lowe with whom was Robert Anthony Jacques on the brief, for appellants.

      Michael J. Budow with whom were Joseph Patrick Clancy and Clancy & Pfeifer on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court. Smith, J., dissents and filed a dissenting opinion at page 139 infra.

Elizabeth and Barney Byrum, appellants, sued Carlton and Arthur Maryott in the Circuit Court for Montgomery County for damages to Mrs. Byrum and their marital relationship resulting from an automobile accident which occurred in Montgomery County on December 12, 1969. Directed verdicts as to the issue of negligence were granted in favor of the appellants as to Carlton Maryott, the appellee, and in favor of Arthur Maryott. The case went to the jury on the question of damages. The jury returned a verdict of $5000 for Mrs. Byrum’s injuries and $2000 for the damage to and interruption of appellants’ marital relationship.

After all of the appellants’ evidence had been received the appellants attempted to introduce mortality tables into evidence to show Mrs. Byrum’s life expectancy. The trial court, after intimating that there was evidence of permanency and after stating that the question was for the jury, sustained the appellees’ objection, apparently on the theory that more evidence of permanency was required to lay a foundation for the introduction of mortality tables than to raise a jury question as to permanency. The appellants claim the court erred in excluding the mortality tables. We agree and reverse the judgment.

Courts in Maryland have long recognized the propriety of using mortality or life expectancy tables to give some guidance to the jury in personal injury or wrongful death cases. In B. & O. R. R. Co. v. Whitacre, 124 Md. 411, 92 A. 1060 (1915), aff'd. 242 U. S. 169, the Court of Appeals stated at 430-431:

“This evidence [mortality tables] was of course intended as a guide for the jury in determining the proper amount of damages to be awarded. Without some evidence in regard to this before the jury, there was no basis except vague speculation on which to base any verdict. The insurance tables of expectancy, based upon actual experience of the large life insurance companies, while not conclusive, have been recognized to be the best character of evidence obtainable for such purposes, and the evidence objected to by these two exceptions was properly admitted.”

See Hutzell v. Boyer, 252 Md. 227, 249 A. 2d 449 (1969); Scott v. James Gibbons Co., 192 Md. 319, 64 A. 2d 117 (1949); Baltimore Transit Co. v. Worth, 188 Md. 119, 52 A. 2d 249 (1947).

The precise question presented is not whether such tables are competent evidence in cases where permanent injuries are shown but rather when must the trial judge allow them into evidence. Phrased another way — how much evidence of permanency need the plaintiff produce before the tables should be admitted?

In the vast majority of jurisdictions mortality tables may be introduced if the plaintiff has produced sufficient evidence to present a jury question on the issue of permanency. United Verde Extension Mining Co. v. Littlejohn, 279 F. 223 (9th Cir. 1922); Southern R. Co. v. Cunningham, 152 Ala. 147, 44 So. 658 (1907); City of Barnesville v. Powed, 124 Ga. App. 132, 183 S.E.2d 55 (1971); Macon v. Yaughn, 83 Ga. App. 610, 64 S.E.2d 369 (1951); Ruud v. Grimm, 252 Iowa 1266, 110 N.W.2d 321 (1961); Dolan v. Simpson, 269 N. C. 438, 152 S.E.2d 523 (1967); City of Okmulgee v. Clark, Okla., 425 P. 2d 457 (1967); Skultety v. Humphreys, 247 Or. 450, 431 P. 2d 278 (1967); 50 A.L.R.2d 419. The appellees cite several cases which they say establish the rule that substantial proof of permanency must be adduced before mortality tables can be introduced into evidence; i.e., more than is required to raise a jury question as to permanency. Our review of those cases shows that only two even colorably support that position. In Dominguez v. Albuquerque Bus Co., 58 N. M. 562, 273 P. 2d 756 (1954), the plaintiffs medical expert testifed that it was “impossible to state” whether her injuries were permanent. This was the only evidence tending to show permanence and was contradicted by defendant’s medical expert who stated that her injuries would heal in “six months to a year.” Based on the evidence the Court held that it was error for the trial court to allow mortality tables into evidence because there was no “substantial” evidence of permanency. We think the New Mexico court’s use of the adjective substantial was in no way intended to require a higher standard of proof than that recognized in the majority of American jurisdictions. In Atlanta & St. Andrews Bay Ry. Co. v. Pittman, 130 Fla. 624, 178 So. 297 (1938), a division of the Florida Supreme Court stated that mortality tables are not admissible “unless it be conclusively shown that the plaintiff has sustained permanent injuries.” The Court did not discuss the facts of that case. We are not persuaded to follow this isolated language in light of the overwhelming judicial opinion to the contrary.

The question thus remaining is did the appellants produce evidence sufficient to create a jury question with regard to the permanency of the injuries suffered? The general rule in this regard was stated in Mangione v. Snead, 173 Md. 33, 51, 195 A. 329 (1937):

“In other words, before it can be said that the effect of an injury is permanent, it must appear that it is caused by some condition caused by the injury which is not likely to change, but such an inference cannot be drawn from the condition itself, when it is accompanied by no physical impairment or defect, is subjective, and offers no intrinsic indicia of its probable duration.”

The rule was explained in Kujawa v. Baltimore Transit Company, 224 Md. 195, 206, 167 A. 2d 96 (1961) wherein it was stated that, “[c]ertainly evidence tending to show only a possibility of permanency is not sufficient to take that issue to the jury.” The rule has been applied in a variety of factual situations which fit .within one of four typical settings. The first is when the testimony of a medical expert that the injury is permanent is sufficient. Montgomery Bus Lines v. Diehl, 158 Md. 233, 240, 148 A. 453 (1929); Straughan v. Tsouvalos, 246 Md. 242, 257-258, 228 A. 2d 300 (1967). The second is where the injury by its very nature establishes permanency (loss of limb; wrongful death). Cluster v. Upton, 165 Md. 566, 569, 168 A. 882 (1933). The third is where the injury, while not by its nature clearly permanent, leads to an inference of permanency due to the passage of time between the act which caused the injury and the time of trial. Hebner v. Powell, 177 Md. 237, 9 A. 2d 232 (1939); Von Schlegell v. Ford, 167 Md. 584, 592, 175 A. 589 (1934); Washington B. & A. R. Co. v. Cross, 142 Md. 500, 510-511, 121 A. 374 (1923); United Laundries Co. v. Bradford, 133 Md. 363, 105 A. 303 (1918). The fourth is where there has been a lapse of time between the injury and trial and there is some expert testimony tending to establish permanency.. Salisbury Coca-Cola Bottling Company v. Lowe, 176 Md. 230, 4 A. 2d 440 (1939); Sim-Kee Corp. v. Hewitt, 13 Md. App. 296, 282 A. 2d 525 (1971).

In Salisbury v. Lowe, supra, the Court stated at 242:

“The trial below did not take place until nearly sixteen months after the appellee drank the fluid. He testified that before the incident happened, he was in perfect health; that for three years he lost no time at his work because of illness; that he had not been able to do a minute’s work since; and the testimony of Dr. Ward and Dr. Collins tends to show that the appellee’s disability is a permanent one. In the face of the above evidence, and in view of the time which had intervened between the date on which the liquid was consumed and the date of the trial, we conclude that the court was right in over-ruling the first special exception whereby it was sought to have it rule as a matter of law, that the alleged injuries of the appellee were not permanent.”

In Sim-Kee Corp. v. Hewitt, supra, the plaintiff testified that he had suffered pain for a period of three years since the injury. A doctor testified that the injuries would continue for an “indefinite period.” When questioned further the doctor stated that he would characterize the injuries as permanent. This Court held the evidence sufficient to go to the jury on the issue of permanency.

Our review of the record in the case at bar leads us to conclude that the instant case fits within this last category. Mrs. Byrum testified at trial, approximately 4V2 years after the accident, that the back pain she had suffered since the accident persisted and prevented her from continuing in her employment, that she still had speech and coherency problems, that she still suffered occasional blackouts and that the pains in her neck and shoulder persisted although less than originally. Mrs. Byrum also testified that prior to the accident she was employed and took a large part in the administration of the farm and summer camp that she and her husband owned and that since the accident she had not been regularly employed and had been unable to help out with the farm or to open the camp. Mr. Byrum testified that his wife still had extreme difficulty with speech and coherency; that she still suffered considerable pain; that she still suffered occasional blackouts and that she was no longer able to run the summer camp.

Three treating physicians testified in behalf of the appellants. Dr. Jerry S. Farber, an orthopedic surgeon, who treated Mrs. Byrum from May 1970 until March 1972, when asked about a prognosis for Mrs. Byrum’s condition stated:

“A. Yes, sir. When the patient was seen in June, 1971, I stated in my records it was difficult to ascertain a prognosis of Mrs. Byrum.
“I felt at that point there was a definite underlying psychological problem. I had difficulty to correlate these specifically with the injury.
“I felt there was an element of psychological overlay. This was definitely affecting the complete recovery from her condition.
“Q. Do you have an opinion based on a reasonable medical certainty whether the symptoms that you have observed in Mrs. Byrum will be of a permanent nature?
* * * *
“The Witness: It is difficult for me to determine. I would state that I feel psychological problems are eminent in nature.
“The discomfort and difficulties of the neck for which I treated Mrs. Byrum, I felt, had improved significantly by June of 1971, that they would not necessarily be in permanent relation to that if we divided them.
“If, however, we take the total effect of the accident and what I felt to be the preceding psychological problems, that Mrs. Byrum had signs of permanency to the total condition.”

Dr. Richard Conant, also an orthopedic surgeon testified as follows:

“A. The prognosis in her particular case, I would say, is good in that I feel although she is likely to have discomfort from time to time, she should be able to function reasonably well within certain limits.
“Q. Doctor, based on the history and examination findings made by you of Mrs. Byrum, do you have any opinion based on a reasonable medical certainty whether or not her present condition will be permanent?
“A. Let me say that from the history of her problem, it is likely that she will have complaints referrable to her neck for a prolonged period of time; however, let me also say, that there is a possible neurologic problem here perhaps relating to irritation of nerve roots in her neck which I am not referring to and I believe that residuals in that area are best defined by a neurologist.
“I am not rending an opinion in the neurological field. I am confining my opinion to the musculoskeletal system and not to any possible neurological problems.
“Q. In your opinion, will she require orthopedic care for her condition in the future?
“A. It is my feeling that she will most likely be able to manage with supportive care probably by herself for the most part; although, she may require occasional visits if she has any flare-up in her basic underlying condition.”

Dr. Elizabeth Sherrill, an internist who treated Mrs. Byrum from January 1972 until the time of trial testified as follows:

“Q. Based on your examination of Mrs. Byrum and the symptoms that you discovered particularly with respect to the chronic cervical strain, do you have an opinion based on reasonable medical certainty as to how long this condition will continue?
“A. I think this has an indefinite answer.
“Q. What do you mean by that, Doctor?
“A. Well, by this I mean some people do have more repairative abilities than others. Can I qualify this in reference to the arthritis?
“The Court: I think you had better answer his question. He will give you an opportunity to answer other questions, Doctor.
“The Witness: Well, I guess I will stop with that answer because I don’t know what else I can say.
* * * *
“Q. What if any effect on the indefiniteness of the chronic cervical strain is the degenerative arthritis?
“A. Well, degenerative arthritis by the law of average gets worse instead of better. Also, the symptoms thereof do vary depending upon activity which may be related to motion of the neck, motion of the shoulders, lifting, extreme high looking up for very long, or extremes of low — any extremes of motion particularly sudden circumstances; so that anyone who has osteoarthritis and degenerative arthritis of 'the "spine is a candidate for having chronic neck problems.
“How can I separate what you are going to call a strain and what you are going to call the arthritis. You know I cannot do this. I have no way of measuring what proportion is coming from one thing and what proportion is coming from the other, except that any strain is going to aggravate the symptoms of arthritis.”

While the aforegoing medical testimony was not dispositive on the issue of permanency, when taken together with the condition of Mrs. Byrum four and one-half years after the accident, it clearly presented a factual question for resolution by the jury under the decisions in Salisbury v. Lowe, supra, and Sim-Kee Corp. v. Hewitt, supra. As such it was error for the trial judge not to allow the mortality tables offered by appellants into evidence.

Appellees argue that such error was in any event not prejudicial to appellants because the trial judge instructed the jury that they could consider the question of permanency. They cite Hutzell v. Boyer, supra, in support of that contention. In Hutzell the plaintiff failed to introduce mortality tables in his suit for permanent disability. The defendant on appeal claimed that that failure was fatal to the plaintiffs case. The Court of Appeals held that while such evidence would have been helpful its absence was not crucial and that the jury had sufficient evidence from which to find permanent injury. The holding in Hutzell dealt exclusively with the sufficiency of evidence. It did not speak to the question of the possible prejudice to plaintiff when mortality tables are excluded. Gilligan v. Blakesley, 93 Colo. 370, 26 P. 2d 808 (1933) also cited by appellees is indistinguishable from Hutzell and does not support their contention.

In the instant case the only evidence as to life expectancy was the approximate age of Mrs. Byrum at the time of trial. The jury was left to speculate as to the possible duration of Mrs. Byrum’s life if they found the injuries she suffered were permanent. She was thus prejudiced by the trial court’s refusal to admit the mortality tables into evidence.

Judgment reversed.

Case remanded for a new trial on the issue of damages as to Carlton Maryott.

Costs to be paid by appellees.

Smith. J.,

dissenting:

I respectfully dissent.

We start with the fact that Annot., Evidence-Mortality Tables, 50 A.L.R.2d 419 (1956), states:

“It appears to be the unanimous view in this country in those jurisdictions where the question has arisen that the admissibility of mortality tables, or testimony pertaining thereto, in a personal injury action is dependent upon proof that the injury was permanent.” Id. at 421.

I know of no authority in Maryland to the contrary. Therefore, the inquiry must be as to whether there was sufficient evidence before the court to warrant a conclusion that there was permanent injury.

In Bottling Co. v. Lowe, 176 Md. 230, 4 A. 2d 440 (1939), quoted by the majority, the Court stated:

“[T]he testimony of Dr. Ward and Dr. Collins tends to show that the appellee’s disability is a permanent one.” Id. at 242.

The record in that case included testimony by Dr. Collins:

“[I]n my judgment he has a seventy-five per cent disability.”

In Sim-Kee Corp. v. Hewitt, 13 Md. App. 296, 282 A. 2d 525 (1971), cited by the majority, the examination of Dr. Beck relative to the plaintiff’s injuries as stated by this court includes:

“Mr. Abato: ‘Alright sir, thank you. Now doctor, can you also state with a reasonable degree of medical probability, whether the Plaintiff will have any permanent disability as a result of the injuries for which you treated him?
“Dr. Beck: T think he will continue to have these pains for an indefinite period of time. Whether you want to call it permanent or not, I don’t know.’
“Mr. Abato: ‘Well, what do you call them, sir?’
“Mr. [sic] Beck: T would characterize them as permanent.’ ” Id. at 300.

Accordingly, I conclude that neither Bottling Co. nor Sim-Kee is authority for the fact that the combination of passage of time, continued physical complaint, and indefinite or inconclusive medical testimony will suffice to prove permanent injury.

In Kujawa v. Baltimore Transit Co., 224 Md. 195, 167 A. 2d 96 (1961), one of the issues before the Court was whether the trial court properly refused to allow the jury to consider permanency of injuries. The accident took place on November 21, 1956. Trial began on March 8, 1960, a little less time after the accident than in the case at bar, but not much. Judge Horney there said for the Court:

“In order to understand the exception in so far as the son is concerned, a summary of his injuries and of the testimony concerning them is essential.
“The hospital records disclosed that the son had received a frontal fracture of the skull and a brain concussion. He was hospitalized for six days and was discharged as a ‘well boy.’ The son was not called as a witness, but the mother testified that he was more difficult to manage after the accident and that he had frequent headaches and dizzy spells and had twice fallen during ‘blackouts’ after the accident. At the time of the trial he had been suspended from school for disciplinary reasons, but there was also evidence tending to show that he had been somewhat of a problem in school prior to the accident. Other than the medical evidence given by Dr. Gillis there was none to connect the condition of the son (at trial time) with the accident. Dr. Gillis testified that when he began to treat the son about a month after the accident he complained of headaches and dizziness. When asked what effect the injuries he had received might have on the son in the future, the doctor replied:
T cannot give you a definite opinion. It is too indefinite. This condition may persist or there may be some improvement. It is very, very difficult to determine a matter of that type. The only thing that makes me a little bit dubious about his future is the fact he was injured way back in 1956, * * * and there is still complaint of headaches and dizziness and difficulty in school. Now the usual head concussion symptoms clear up in a much shorter time than that. This boy still has headaches and dizziness. Therefore, I think there is a probability it may persist. I can’t be sure, of course.’
When asked how long the dizziness and headaches would persist, the doctor answered: T cannot tell you at all. There is no rule which I can go by * * *. The boy needs further treatment. I think his treatment is helping him some now.’ And when he was asked how much longer the treatments should continue, the doctor said ‘six months longer.’
“On these facts, the Kujawas contend, since there was some evidence of permanent injury to both the mother and the son, that the question should have been submitted to the jury and that the instruction was therefore erroneous.. . .
“The question here is whether the evidence produced was sufficient to also require submission to the jury of a question as to the permanency of the injuries in addition to the submitted issue involving ‘suffering in the future.’ We think not.
“Certainly evidence tending to show only a possibility of permanency is not sufficient to take that issue to the jury. In Mangione v. Snead, 173 Md. 33, 195 Atl. 329 (1937), where the plaintiff was an infant at the time of the accident and there was testimony by his mother that the child was normal before the. accident and that after the accident he was stupid and got into mischief all of the time, this Court, in pointing out that there must be something more than a conjecture or possibility of the fact to support a finding of permanent injury, said at p. 51:
‘[Bjefore it can be said that the effect of an injury is permanent, it must appear that it is caused by some condition caused by the injury which is not likely to change, but such an inference cannot be drawn from the condition itself, when it is accompanied by no physical impairment or defect, is subjective, and offers no intrinsic indicia of its probable duration.’
“While it is a fact that Dr. Gillis testified that there was a ‘probability’ that the headaches and dizziness of the son might persist, he did not and apparently could not say that his condition was such that it was ‘not likely to change.’ On the contrary, though he could not say how long the condition might last, he stated definitely that he thought ‘certainly six months longer.’ The doctor’s testimony accurately described the son’s actual condition and was sufficient to justify the instruction of the court that ‘such injuries may extend into the future’ but could not be treated as extending ‘for the duration of the life’ of the son.
“A ‘permanent injury’ has been variously defined as an injury that will ‘last throughout life,’ Colby v. Thompson, 207 S. W. 73 (Mo. App. 1918); an injury that may ‘be followed by permanent impairment of earning power or producing irremedial pain,’ Herndon v. Waldon, 47 S.W.2d 1047 (Ky. 1932); and an injury ‘lasting during future life of injured party,’ Sykes v. Republic Coal Co., 22 P. 2d 157 (Mont. 1933). The courts have also drawn a distinction between ‘suffering in the future’ and a ‘permanent injury.’ See, for example, Colby v. Thompson, supra; Stahlberg v. Brandes, 299 S. W. 836 (Mo. App. 1927). We think the lower court was correct in refusing to allow the jury to consider permanency of injuries under the particular facts of this case. See Baer Brothers, Inc. v. Keller, 208 Md. 556, 119 A. 2d 410 (1956), and the cases therein analyzed.” Id. at 205-07.

In Craig v. Chenoweth, 232 Md. 397, 194 A. 2d 78 (1963), Judge Sybert said for the Court:

“The appellants’ other contention is that ‘there is uncontradicted evidence from which a conclusion of permanency may be drawn’ and that therefore it was error to instruct the jury that they could not return an award for a permanent injury of any type. Again, we are constrained to disagree. The applicable rule as to proof of permanency of injuries was recently set out in the case of Kujawa v. Baltimore Transit Co., 224 Md. 195, 167 A. 2d 96 (1961), wherein it was stated on page 206 of 224 Md. that, ‘[cjertainly evidence tending to show only a possibility of permanency is not sufficient to take that issue to the jury.’ In the present case there was no medical testimony showing, or even tending to show, that the injuries suffered by Mrs. Craig were permanent in nature. Dr. Irey, when asked how long treatment would last, stated ‘[t]hat would be a guess * * *. It. would be hard to say,’ and that he could not put any time limit on the duration of the injuries. When the appellants called a Dr. Reynolds (a specialist to whom Mrs. Craig had been referred for treatment to her neck and shoulder), he was not asked whether the injuries were permanent, but it is significant that he did testify that he had discharged Mrs. Craig from formal treatment prior to trial because of her improvement and stated his belief that any further treatment could be administered by the appellant wife herself. Thus there was insufficient evidence to take the issue of permanency to the jury and the trial judge was correct in so instructing them. The judge did, however, instruct the jury that, if they found for the plaintiffs, Mrs. Craig would be entitled to recover for conscious pain and suffering that she endured as a result of the accident, down to the time of trial and for such time in the future as the jury should determine that she would so suffer. This, we think, was all that she was entitled to, under the evidence presented.” Id. at 401-02.

In Straughan v. Tsouvalos, 246 Md. 242, 228 A. 2d 800 (1967), Judge Murphy said for the Court of Appeals:

“We have consistently rejected the proposition that the jury may form a judgment or conclusion on the basis of testimony which admits of mere possibilities. The test to be applied, whether the question involved be the existence of an injury or its cause, is reasonable probability or reasonable certainty. Ager v. Baltimore Transit Co., 213 Md. 414 (1957).” Id. at 257.

The majority opinion states in footnote 2 that “[r]ecent cases draw a distinction as to whether or not there are physical impairments or only subjective complaints,” pointing to Kujawa and Raines v. Boltes, 258 Md. 325, 265 A. 2d 741 (1970). In Raines the Court of Appeals reversed and remanded for a new trial on the issue of damages only, holding that the trial judge had erred in his refusal to instruct that there was no evidence of permanent injury. No expert testimony was presented. Judge McWilliams there said for the Court that “[a] plaintiff who attempts to establish future impairment from an injury which is essentially subjective in nature, such as the one in the case at bar [(injury of some type to the back)], without expert medical testimony, bears a heavy burden.” It is true that in this case the husband testifed that his wife “still had extreme difficulty with speech and coherency,” but in the absence of medical testimony to the effect that these difficulties stemmed from the accident, one could hardly label them as such “physical impairments” as would make expert testimony unnecessary.

In my judgment, the expert testimony here tendered was too nebulous in form to warrant a reversal of the trial judge’s refusal to admit into evidence the mortality tables tendered. Accordingly, I would affirm.

      . After the conclusion of all the evidence the trial judge sent the issue of permanent injury to the jury.

      . Recent cases draw a distinction as to whether or not there are physical impairments or only subjective complaints. See Raines v. Boltes, 258 Md. 325, 265 A. 2d 741 (1970) and Kujawa v. Baltimore Transit Co., supra.


author: Gilbert, J.,

text:
    BELTWAY HOMES, INC. v. FLORENT B. HUGHES et al.
    [No. 806,
    September Term, 1974.]

      Decided May 7, 1975.

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

      Stephen H. Helfrich, with whom was Robert P. Slaby on the brief, for appellant.

      James B. Deerin, Jr., with whom was John H. Treanor on the brief, for appellees.
   Gilbert, J.,

delivered the opinion of the Court.

Beltway Homes, Inc., appellant, purchased at a foreclosure sale in Prince George’s County, Maryland, a house represented as having four bedrooms. After ratification of sale by the court the appellant discovered that the house contained only three bedrooms. Approximately three and one-half months following the ratification of the sale appellant moved to rescind the sale. Appellant filed its motion in the foreclosure proceeding. Appellant asserted, in effect, in the trial court, that it had purchased “a pig in a poke”, and found the “pig” was much smaller than advertised.

The matter was heard in the Circuit Court for Prince George’s County. The chancellor ruled that inasmuch as the order of ratification was passed more than thirty days prior to the filing of appellant’s “Motion To Set Aside Decree”, the appellant was required to proceed under the provisions of Md. Rule 625 a. Such a ruling was made by the chancellor because the decree was enrolled, and he believed that the court no longer possessed the authority tc revise and control it under Ventresca v. Weaver Bros., 266 Md. 398, 292 A. 2d 656 (1972) and Travelers Indemnity Co. v. Rosedale Passenger Lines, Inc., 450 F. 2d 975 (4th Cir. 1971).

Md. Rule 625 a provides:

“For a period of thirty days after the entry of a judgment, or thereafter pursuant to motion filed within such period, the court shall have revisory power and control over such judgment. After the expiration of such period the court shall have revisory power and control over such judgment, only in case of fraud, mistake or irregularity.” (Emphasis supplied).

The trial judge opined that in addition to the appellant’s having to show “fraud, mistake or irregularity”, appellant must also demonstrate that it had a meritorious claim and was acting in good faith, with due diligence. Bowen v. Rohnacher, 15 Md. App. 280, 290 A. 2d 560 (1972). Having determined that there was no fraud, mistake or irregularity shown, and that appellant had not acted with due diligence, the court denied the appellant’s motion, ordered the deposit money theretofore- paid by the appellant forfeited to the Trustees and authorized the Trustees “to sell the property at the risk and expense of ” the appellant. Md. Rules W74 f and BR6.

In order to set the scene for a discussion of the applicable law, a brief resume of the events leading to this litigation is helpful. As a result of a default under the terms of a promissory note, secured by a deed of trust, a foreclosure proceeding was instituted against the property known as 4214 Canyonview Drive, Upper Marlboro, Maryland. The Trustees named in the deed of trust, pursuant to a sale clause embodied in the encumbrance, advertised the property in the Prince George’s Sentinel. The advertisement read in pertinent part:

“Trustees sale of valuable, improved real estate, located in Prince George’s County, Maryland, improved by premises known as 4214 Canyonview Drive, Upper Marlboro, Maryland.
. . . the undersigned Trustees will sell at public auction in front of the Court House door in Upper Marlboro, Maryland, on Thursday, February 14, 1974, at 10:00 A.M., property described in the Deed of Trust as follows: . . .
This property is improved by a U bedroom, IV2 baths, living, dining, kitchen and recreation room, 2 stories, split foyer, brick and frame house.
Terms of Sale
A deposit by cash, certified check, or check acceptable to the Trustees in the amount of $2,000 will be required of the purchaser at the time of sale. The balance in cash with interest at 8 per centum per annum from the date of sale to the date of payment, payable within ten days after final ratification of sale.
Compliance with the terms of sale shall be made within ten days after final ratification of sale or deposit shall be forfeited and the property resold at the risk and cost of the defaultant purchaser.” (Emphasis supplied).

Mr. James Dana Johnson, an employee of the appellant, read the advertisement and on the same date or within a few days thereafter, drove to the subject property. The house was “boarded up.” Each window and door had been covered with wood in order to prevent access. Johnson only observed the property from the exterior. He testified that he contacted the attorney for the Trustees, and the attorney refused Johnson permission to enter the premises. Neither Johnson nor any other employee of the appellant, so far as the record reveals, made any effort to contact the Trustees directly in order to obtain permission to inspect the interior of the house. Johnson bought the property on behalf of his employer, the appellant, on a bid price of $35,600.00. A certificate of sale was filed by the customer, and the court, on April 29, 1974, ratified the sale. Following the ratification, Johnson, accompanied by a workman, went to the property and removed certain boards from the doors and windows. Johnson entered the house and discovered that it contained three bedrooms, not the advertised four. Under date of June 17, 1974, counsel for Beltway wrote to the attorney for the Trustees and advised that, “Beltway ... is not interested in making another offer on this property at this time.” Beltway demanded the return of its deposit because “the house was advertised as being four bedrooms but actually contained only three bedrooms. Beltway . . . had no opportunity or privilege to inspect . . . [the] property prior to bidding . . . and acted in complete reliance upon the description of the property ... in the public notices.” Obviously, the Trustees did not return the deposit money to appellant. Thereafter, appellant, through its attorney, informed the appellees per letter of August 2, 1974, that it intended to litigate the return of the deposit unless the Trustees surrendered, the earnest money to the appellant. The Trustees apparently declined to heed Beltway’s warning, and, on August 9, 1974, the instant proceeding was commenced.

At the hearing the appellant presented testimony from an expert witness that the house was worth approximately $2,500.00 less than it would have been if it had contained four bedrooms. One of the Trustees testified that no one from Beltway had ever requested her permission to view the premises either before or subsequent to the sale. The Trustees admitted, however, that through a clerical error the property had been advertised as a four bedroom dwelling. The chancellor found, as we have previously observed, that there was no fraud, mistake or irregularity within the meaning of Md. Rule 625 a, that Beltway had not acted with due diligence, and that “the ‘misrepresentation’ or ‘mistake’ contained in the advertised notice of sale was in any event inconsequential.”

In Capobianco v. Gordon, 19 Md. App. 662, 313 A. 2d 517 (1974), this Court discussed the confusion that obviously exists in the minds of the Bench and Bar relative to Md. Rule 625 a, and the exception that has been carved from it by the Court of Appeals. Judge Lowe, in Capobianco, pointed to the area of difficulty and stated at 668-9:

“In spite of the apparent strictures of Rule 625 a, an exception granting discretionary latitude in setting aside enrolled judgments in cases not heard upon their merits continues to be given credence which misleads counsel and court alike. Were this language, usually in the form of dicta, a mere passing nod, we could limit ourselves to the rights of these litigants. Unfortunately, when such reference is made, it is given the solemnity of Moses as he carried the tablets of stone from Mount Sinai.”

Judge Lowe went on to state:

“This incongruity can be explained, but not justified, by the existence prior to the adoption of Rule 625 a of separate standards for setting aside judgments at law and decrees in equity.” (Footnote omitted).

The Capobianco holding was limited to actions at law and it specifically held that the trial “court’s revisory power over enrolled judgments at law” is restricted “to the three grounds set forth in the Rule [625 a].” As if anticipating the factual situation now before us, Judge Lowe opined at 672:

“We can offer no opinion upon enrolled judgments (or decrees) arising from cases in equity not heard upon their merits.”

Capobianco also notes at 671 that:

“There has been no case in either law or equity, since the adoption of Md. Rule 625 a in 1957, that has turned on a ‘circumstance’ such as to ‘satisfy the court in the exercise of sound discretion’ that an enrolled decree should be set aside, that was not within the ‘fraud, mistake or irregularity’ restriction, and so stated.” (Footnote omitted).

We now apply the exception.

It must be noted that the ratification of the sale was granted in a routine manner. Had the ratification been assailed and granted on its merits, the order would have become enrolled after thirty days, and then could only have been set aside for “fraud, mistake or irregularity.” Md. Rule 625 a; New Freedom Corp. v. Brown, 260 Md. 383, 385, 272 A. 2d 401 (1971). In the instant case, however, there was originally “no determination on the merits and in such circumstances an enrolled decree may be set aside on a petition filed in the original proceedings”, New Freedom Corp. v. Brown, supra, if the movant can demonstrate that “the decree was entered by surprise or mistake or if the circumstances are such as to satisfy the court in the exercise of a sound discretion that the decree should be set aside.” New Freedom Corp. v. Brown, supra; Pinkston v. Swift, 231 Md. 346, 351, 190 A. 2d 533 (1963); Cramer, Trustees v. Wildwood Co., 221 Md. 102, 107, 175 A. 2d 750 (1961); Kennard v. McKamer Realty Co., 224 Md. 490, 496, 168 A. 2d 369 (1961); Pugh v. Waclawski, 211 Md. 346, 351, 127 A. 2d 376 (1956).

“[T]he facts relied on by one seeking to have the sale set aside must be very clearly established and must be of such character as strongly appeal to the conscience of the Court.” Connaughton v. Bernard, 84 Md. 577, 590, 36 A. 265 (1896).

An appeal to this Court from a denial of a motion to set aside a decree, or the denial of a motion to strike or rescind a decree or judgment, does not serve as an appeal from that judgment. New Freedom Corp. v. Brown, supra. The sole question presented by an appeal from such a denial is whether the trial court abused its discretion. S. & G. Realty v. Woodmoor Realty, 255 Md. 684, 692-3, 259 A. 2d 281 (1969).

In the case now before us the chancellor said,

“The description of the property to be sold at this foreclosure fairly and accurately described the location and general features of the improvements. The names of the Trustees and the name and address of their attorney was also provided. Yet it seems that Beltway made no effort to inspect the property or make any inquiries concerning it.” (Emphasis supplied).

The italicized statement is not supported by the record. Mr. Johnson testified, as we have previously observed, that he had talked to Mr. Sloan, the then attorney for the Trustees, subsequent to the sale, but before the ratification, and was told that he “could not get into the property to see it.” Johnson also related to the court that he did not contact the Trustees because he was operating through Beltway’s lawyers and they told him “you cannot get into the property unless you get permission from the attorney who has handled it for the Trustees.”

One of the Trustees informed the chancellor that her attorney was without authority to deny access to the house to anyone. She stated, in response to a question of what “normally happens” when a prospective bidder asks to see the house, that counsel “would either refer them to the Trustee or he might get the information from the Trustee and give it for them. But I know of no case where the attorney did not say ‘you should telephone the Trustees’ and tell them to whom they should call, to whom the person should direct the inquiry.” Such a statement falls well short of a denial of Johnson’s testimony. It is merely a discourse on what “normally happens”, and most certainly, the discourse does not in this case signal that the Trustees’ then attorney did not deny Johnson the permission of inspecting the interior of the house. The Trustees’ counsel, who allegedly declined the inspection privilege, was not called as a witness by either side.

The trial judge found that the mistake in advertising the property as a four bedroom house, when it in fact only had three, was not a material misrepresentation. To underpin his decision the judge relied upon Carozza v. Peacock Land Corp., 231 Md. 112, 188 A. 2d 917 (1963) wherein the Court stated:

“ . . . [RJeliance upon a misrepresentation of fact, intentionally misrepresented or otherwise, is justifiable only if the fact misrepresented is material.”

The Court of Appeals, in Carozza, speaking through Judge Prescott, (later Chief Judge) also said:

“ ... It is well established that if the question be raised in time, the court will see that no undue advantage is taken of a purchaser at a judicial sale, and he will not be compelled to consummate the sale if it would be inequitable to require him to do so, especially where there has been misrepresentation, intentional or otherwise, on the part of the trustee.. .. The Court stated that this rule was necessary for the purposes of justice, as well as to encourage bidding at judicial sales. See also Paper Bag Co. v. Carr, 116 Md. 541, 82 A. 442 [(1911)]; Ivrey v. Karr, 182 Md. 463, 34 A. 2d 847 [(1943)]; Talbert v. Seek [210 Md. 34, 122 A. 2d 469 (1956)]; Miller, Equity Procedure, § 499; 30A Am. Jur., Judicial Sales, §§ 122-138; 50 C.J.S., Judicial Sales, § 48. The rationale of the cases is well expressed in C.J.S., ibid., wherein it is stated that, in passing on a purchaser’s application to be released from his bid, the court will apply the equitable rules governing the reformation, rescission, or specific performance of contracts, and will grant relief where the contract could not be specifically enforced, or could be rescinded, and will refuse relief where the contract could be specifically enforced or could not be rescinded.” (Footnote omitted). (Emphasis supplied).

The Court continued by stating:

“Of course, the appellants have no standing to complain of the misrepresentations, if they knew the facts as they actually existed. Stewart v. Devries, [81 Md. 525, 32 A. 285 (1895)]; Boring v. Jungers, 222 Md. 458, 160 A. 2d 780 [(1960)]. And, as was said in Kauffman v. Walker, 9 Md. 229, 240 [(1856)], judicial sales will not be set aside for causes that the parties in interest might with a reasonable degree of diligence have obviated. . . .”

We note that the chancellor, quoting from Carozza v. Peacock Land Corp., supra, stated:

“A fact is material if its existence or non-existence is a matter to which a reasonable man would attach importance in determining his choice of action in the transaction, or the maker of the misrepresentation knows that its recipient is likely to regard the fact as important although a reasonable man would not so regard it.”

Notwithstanding Johnson’s testimony that he would not have purchased the house for' the appellant if Johnson had known that it contained only three bedrooms, and the expert witness’s testimony that the house with three bedrooms was worth $2,500.00 less than the four bedroom version, the court concluded that the misrepresentation was not material. We, however, think the misrepresentation to be material because 25 per cent of the advertised bedroom space was non-existent, and the uncontradicted evidence was to the effect that the appellant would not have purchased the house had appellant known that it only contained three bedrooms.

We also think that the action brought by the appellant was done so in a timely manner and with due diligence. It is clear from the record that the discrepancy between the number of bedrooms advertised and the number of bedrooms in the house was called to the attention of the Trustees’ counsel immediately after the discovery. The discovery occurred when Johnson, after ratification went to the house, and on the assumption that settlement was a matter of formality, removed certain boards and entered. Appellant was, under the terms of the sale, paying interest at 8 per cent per annum on the unpaid purchase price so that it had a vital interest in inspecting the property. A letter from appellant’s counsel to the then attorney for the appellees under date of June 17,1974 stated:

“As per our conversation of June 12, I have spoken to Dana Johnson of Beltway Homes, Inc. about their intentions regarding the above captioned matter [foreclosure sale of 4214 Canyon view Drive]. He indicated that Beltway . . . is not interested in making another offer on this property at this time. He . . . demands to have back . . . [the] deposit and to be released from any obligations under . . . [the] agreement with your client. The basis for this demand is, of course, that the house was advertised as being four bedrooms but actually contained only three bedrooms. Beltway . . . had no opportunity or privilege to inspect this property prior to . . . sale . . . and acted in complete reliance upon the description of the property as published. . . .”

The record further reflects that on August 2, 1974 the appellant again demanded the return of its money. Suit was filed, as we have already observed, on August 9, 1974.

From the letter of June 17, 1974, one may draw a rational inference that the Trustees had endeavored to prevail upon the appellant to “make another offer” for the property. Although the chancellor felt that the appellant’s delay in filing the motion demonstrated a lack of “due diligence” and thus, under Bowen v. Rohnacker, supra, precluded it from obtaining the sought relief, we have a different view. We cannot say that a delay of three and one-half months before filing suit to set aside the sale is unreasonable or lacking in “due diligence”, under the circumstances of this case. This is particularly so when, as here, there has been an on-going effort to recover the deposit money short of litigation.

As we see the facts, the Trustees were at fault in the first instance. It was their negligent misrepresentation that placed appellant in a position of peril from which the appellant sought to extricate itself. Johnson’s uncontroverted testimony was that it was the refusal of the Trustees’ then counsel to allow inspection of the property that compounded the Trustees’ error, and thus forestalled an earlier opportunity to correct the wrong.

We think the words of Judge Prescott in Carozza v. Peacock Land Corp., supra, bear repeating because they are particularly apropos to the reason the decree in this case must be set aside.

“ ... [T]he court will see that no undue advantage is taken of a purchaser at a judicial sale, and he will not be compelled to consummate the sale if it would be inequitable to require him to do so, especially where there has been misrepresentation, intentional or otherwise, on the part of the trustee. . . .”

Here, the misrepresentation was unintentional, but it would be “inequitable to require” appellant “to consummate the sale.” The chancellor should have granted the motion to set aside the ratification order, and his failure to do so constituted an abuse of discretion.

Order denying motion to set aside decree forfeiting the $2,000.00 deposit money and directing trustees to sell the property at the risk of appellant, reversed.

Costs to be paid by the appellees.

      . We observe that in the 1974 Cumulative Supplement to the Maryland Rules of Procedure the Committee Note to Md. Rule 625 a states: “This section is applicable to both law and equity judgments. (For a definition of ‘Judgment’, see Rule 5 o). It prescribes the only three grounds upon which a court may exercise revisory power over an enrolled judgment. Such decisions as Pinkston v. Swift, 231 Md. 346, 190 A. 2d 533 [(1963)] (see discussion of these decisions in Capobianco v. Gordon, 19 Md. App. 662, 313 A. 2d 517 (1974)), which indicates a broader discretion exists in the case of equity judgments, are no longer applicable.” We think the Committee Note to be misleading. Pinkston specifically states that there is a distinction to be made between equity decrees entered after a hearing on the merits and those entered without a hearing upon the merits. Capobianco underscores that exception, although it notes that the exception had not been applied.

        . Black’s Law Dictionary (4th ed. 1968), in discussing the difference between “petitions” and “motions”, states at 1302: “The word ‘petition’ is generally used in judicial proceedings to describe an application in writing, in contradistinction to a motion, which may be viva voce.... The principal distinction between motions and petitions lies in the fact that motions, though usually made in writing, may sometimes be made orally, while a petition is always in writing. . . .” It is indubitable that the Court of Appeals in New Freedom Corp. v. Brown, supra, utilized the word “petition” interchangeably with the word “motion”. Unless the matter is orally made, the distinction between “petition” and “motion” is without a difference. Therefore, in this case, inasmuch as the motion to set aside the decree was in writing, it is indistinguishable from a petition.

      . The procedure utilized in New Freedom Corp. v. Brown, supra, is apposite to that employed in the case at Bar. There, as here, the sale was routinely ratified, and there, as here, after the order of ratification had become enrolled, the purchaser petitioned the court to set the sale aside and order a return of the deposit money.