author: Mason, J.,

text:
    JOHN MARTIN STRAWHORN v. JANET B. STRAWHORN
    [No. 1135,
    September Term, 1980.]

      Decided October 7, 1981.

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

      Stanley E. Baritz for appellant.

      Barnett Rosenberg for appellee.
   Mason, J.,

delivered the opinion of the Court.

On this appeal we are asked to decide, among other things, whether the chancellor erred in awarding exclusive use and possession of the family home of the parties to appellee for her benefit and for the benefit of her minor child of a former marriage.

John Martin Strawhorn, appellant, and . Janet B. Strawhorn, appellee, were married in July of 1977 and separated in June of 1979. During this marriage no children were born or adopted. The parties lived together with appellee’s son and appellant’s stepson in the family home which they acquired in July of 1977. At the present time appellee receives $275.00 a month in child support payments from the father of the minor child.

In August of 1979 appellee filed suit for an absolute divorce from appellant on the ground of adultery. She also sought pendente lite and permanent alimony, counsel fees, and the use and possession of the family home. Appellant, on the other hand, filed a cross bill for an absolute divorce on the ground of adultery. A hearing was held before a domestic relations master on the pendente lite issues. The master recommended that Appellee be awarded use and possession of the family home, and that she be denied alimony and counsel fees. The pendente lite recommendations of the master were adopted by the chancellor in an order dated 7 January 1980. Subsequently, a hearing was held on the merits of the case and the chancellor in an order dated 17 July 1980 dismissed appellant’s cross-bill and awarded appellee, among other things, an absolute divorce and the use and possession of the family home for a period of three years.

With respect to the use and possession award of the family home, appellant argues, in effect, that although he has no legal duty to support appellee’s son of a former marriage, the use and possession award nevertheless imposes such a duty. That "it is a harsh result which deprives a man of his property to permit another man’s child to remain in the house.”

In response thereto appellee argues that the use and possession award only runs to the benefit of the spouse and is substantially the same as alimony inasmuch as it may not be continued if the spouse having use and possession of the family home remarries. Appellee argues further that the use and possession award was a proper exercise of discretion by the chancellor and that "while it is true that only certain categories of spouses are eligible for use and possession orders, namely spouses with children (be they children of the marriage or not) it is the spouse and not the children to whom the order runs.”

The authority upon which the chancellor issued the use and possession award of the family home to appellee is section 3-6A-06 of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland which, in relevant part, provides:

(a) The authority conferred by this section shall be exercised to permit the children of the family to continue to live in the environment and community which is familiar to them and to permit the continued occupancy of the family home and possession and use of family use personal property by a spouse with custody of a minor child who has a need to live in that home. ... In exercising its authority under this section, the court shall consider each of the following factors:
(1) The best interests of any minor child; (Emphasis supplied).

In Pitsenberger v. Pitsenberger, 287 Md. 20 (1980), the Court of Appeals lucidly delineated the purpose of section 3-6A-06 in the context of a pendente lite use and possession award:

In enacting § 3-6A-06, the State’s provision of pendente lite use and possession awards is intended to give special attention to the needs of minor children to continue to live in a familiar environment for the temporary duration of the pendente lite period. The procedure provided for in § 3-6A-06 seeks to avoid uprooting the children from the home, school, social and community setting upon which they are dependent, especially during the period of parental separation. During this period, due to the contentious behavior of the parents, the children have the greatest need for a stable environment to help them overcome the family instability.

Id. at 31-32.

Section 3-6A-06 is designed to ensure that minor children need not suffer up to the point when grounds for a divorce may be proven. Because the main purpose of § 3-6A-06 is protection of the children’s interests, the children must be permitted to reside in the family home regardless of the existence of probable grounds for a divorce.

Id. at 33. (Footnote omitted).

We think the statute makes it clear that custody of a minor child and a need to live in the family home are necessary prerequisites that must be satisfied before a spouse can be awarded use and possession of the family home. Here appellee satisfied the custody of a minor child requirement, and there was ample evidence in the record for the chancellor to find a need by appellee and her child to live in the family home. This, however, does not end our inquiry.

Another issue, as we perceive it, is whether the word child as it appears in section 3-6A-06 means any child or is its meaning restricted to a child of the parties. A similar issue in a different context was considered by the Court of Appeals in Brown v. Brown, 287 Md. 273 (1980). There the question was whether the lower court could imprison a stepfather under the court’s contempt power to enforce a contractual obligation incorporated in a divorce decree to support a stepchild. Article III, section 38 of the Maryland Constitution provides:

Imprisonment for debt.
No person shall be imprisoned for debt, but a valid decree of a court of competent jurisdiction or agreement approved by decree of said court for the support of a wife or dependent children, or for the support of an illegitimate child or children, or for alimony, shall not constitute a debt within the meaning of this section.

The stepfather argued, in essence, that he was not subject to incarceration under section 38, supra, for not supporting his stepdaughter because there was no legal duty, independent of his contractual obligations, to support her. In reversing the lower court which had adjudged the stepfather in contempt, the Court said:

That the legal duty to support does not ordinarily encompass a stepchild is beyond doubt, and the authorities are legion to that effect. ... And this is for good reason, for the foundation upon which the law imposes a duty of support upon parents does not similarly justify such a duty being placed upon stepparents. (Citations omitted).
* * *
[T]he obligation of the appellant here to support his stepchild is contractual, and consequently quite different from a father’s noncontractual duty to support his natural or adopted child.... [H]is agreement to aid in the support of his stepdaughter created nothing more than a debt for which the constitution affords him immunity from incarceration when he failed to discharge his contractual obligation.

In buttressing its interpretation of section 38 that the word "child” did not encompass stepchild, the Court observed:

[I]t has long been established that the 'popular conception of the meaning of the words "child or children” [of specific individuals] is "immediate offspring.” Billingsley v. Bradley, 166 Md. 412, 419, 171 A. 351, 354 (1934). See Ryan v. Herbert, 186 Md. 453, 461, 47 A. 2d 360, 364 (1946); Webster’s Third New International Dictionary, 388 (2d unabr. ed. 1961). Second, it has been stated that the word (child 'has two meanings in law: (1) in the law of . . . domestic relations, and as to descent and distribution, it is used strictly as the correlative of "parent,” and means a son or daughter. . .’
* * *
Finally, when the legislature intends that the word 'child’ have other than its ordinary meaning, it generally defines explicitly the scope of the word as so used. See, e.g., Md. Code 1959, 1976 Repl. Vol. 1979 Cum. Supp.), Art. 27, § 35A (child abuse); Md. Code (1957, 1979 Repl. Vol.), Art. 88A, § 45 (Aid to Families with Dependent Children).

Id. at 284-285. See also 59 Am. Jur. 2d Parent and Child § 3 (1971) where it is stated:

The word 'children’ does not ordinarily include stepchildren or grandchildren. In a statute, it may include adopted children. But in a private instrument it is usually held not to include them unless a contrary intent appears, or unless a contrary construction is required by statutory definition.

(Footnotes omitted).

In the same vein, see also Flores v. King, 13 Md. App. 270 (1971) where this Court was requested to construe the word child in the wrongful death statute. There it was argued that since the stepdaughter was completely dependent upon the decedent she should be allowed to assert a claim for her stepfather’s death. In rejecting this contention, we said: "We are urged to judicially interpret the noun 'child’ as used in the statute so as to include 'dependent stepchild.’ We decline to do so. Id. at 273-274.... We think that had the legislature intended the word child to include stepchild it would have said so.” Id. at 275.

Although the construction of the word child by the Court of Appeals in Brown v. Brown, supra, and this Court in Flores v. King, supra, would appear to militate against holding that the word child in section 3-6A-06 includes stepchild, the cardinal rule in the construction of a statute is to effectuate the real and actual legislative intent. Atlantic Gulf & Pacifíc Co. v. Dept. of Assessments and Taxation, 252 Md. 173, 177 (1964). The language of the statute is the primary source for determining this intent. State v. Fabritz, 276 Md. 416, 421 (1975), cert. denied, 425 U.S. 942 (1976).

The legislative history of the instant statute (Chapter 794, Laws of Maryland 1978, 2304, 2309) discloses that the original language in section 3-6A-06(A)(l) read: "The best interests of any minor children of the parties.” The words "children of the parties” were subsequently deleted and substituted in lieu thereof was the word "child”. We think this amendment clearly evinced a legislative intent not to limit the meaning of the word child to a child of the parties, but to expand the meaning of the word to embody any child of the family, including a stepchild. To hold otherwise, we would be usurping legislative power and destroying a legislative purpose by reinserting words into the statute that the legislature specifically deleted. See Slate v. Zitomer, 275 Md. 534, 540, cert. denied, 423 U.S. 1076 (1976). See also, Note Property Disposition Upon Divorce in Maryland: An Analysis of the New Statute, 8 U. Balt. L. Rev. 377, 388 n. 75 (1979) where it is stated: "The statute does not include a requirement that the child be a product of the marriage between two spouses involved in the divorce. Presumably, a child of either spouse by a prior marriage or even an unrelated child in the custody of a party, would be sufficient to permit a use and possession award.”

For the foregoing reasons, we conclude that the chancellor neither erred nor abused his discretion in awarding the use and possession of the family home to appellee. Nor do we find, as argued by appellant, that the chancellor abused his discretion in awarding appellee the use and possession of the family home for a three year period following a nine month pendente lite use and possession award. Finally, because the issue was neither raised nor decided below, we need not determine whether the use and possession award of the family home to appellee for the benefit of her minor child, who appellant had no obligation.to support, constituted an unconstitutional taking of appellant’s property. Maryland Rule 1085. See Pitsenberger v. Pitsenberger, supra, at 33, 34.

In awarding appellee $200.00 a month in alimony, the chancellor observed:

Mrs. Strawhorn seeks alimony and counsel’s fee. It is undisputed that she suffers from a long-standing mental disorder that may have had its genesis during her formative years. She is presently receiving psychiatric care from Dr. Hirsche and he testified that she will be under treatment for a protracted period of time. While the plaintiffs present income and defendant’s projected income are practically identical, I am persuaded that an award of some alimony, albeit less than that sought, shall be made.

In determining an award of alimony, the chancellor should consider "the husband’s wealth and earning capacity, the station in life of the parties, the assets and income of the wife, their ages, the physical conditions and ability to work, the length of time the parties lived together and circumstances leading to the divorce and the fault that destroyed the marital relationship.” Sody v. Sody, 32 Md. App. 644, 658 (1976). See also Waters v. Waters, 191 Md. 436 (1948); Quinn v. Quinn, 11 Md. App. 638 (1971). "The controlling factors are the husband’s overall financial ability to support (and not merely his current income) and the wife’s need for support.” Quinn v. Quinn, supra, at 643. Even though culpability can be considered in the granting or denying of alimony, alimony cannot be awarded strictly as a punitive measure since the sole object of alimony is to provide an allowance to the spouse "where income is insufficient to care for his or her needs, food, clothing, habitation and other necessities.” Id. at 643. The fault that destroyed the marital relationship can be considered only as an element in the amount of alimony to be awarded when it affects the economic needs of the party seeking alimony. Kingsley v. Kingsley, 45 Md. App. 199, 209 (1980). In the present case the chancellor did not find that appellee’s psychiatric problems stemmed from the fault that destroyed the marital relationship, nor did he find that these problems interfered with appellee’s employment as a school teacher.

The financial statements submitted by the parties show that appellant’s net monthly income was $1,276.00 and his expenses were $1,784.00. Appellee’s net monthly income was $1,465.00 which included $275.00 a month in child support payments received from the father of her child. Her expenses, excluding those of her child, were $1,755.57. In addition to granting appellee $200.00 a month in alimony, the chancellor also ordered appellant to pay one-half of the mortgage payment on the family home, and one-half of the utility and insurance bills on the family home. According to appellant after deducting the alimony payment of $200.00, the mortgage payment of $332.00, and the utility and insurance payment of $86.00 from his monthly income of $1,276.00, his net income would be reduced to $658.00 a month, whereas when this amount is added to appellee’s monthly income, her monthly net income would be increased from $1,465.00 to $2,083.00 a month.

Although appellee may be entitled to alimony, the record does not reveal, nor did the chancellor clearly indicate the basis upon which it was granted. The use and possession award of the family home to appellee is akin to an award of alimony and child support and is inextricably tied to the needs of the child. In this case, appellant has no obligation to support the child other than indirectly by force of the use and possession award. Thus, this award plus the order requiring appellant to pay one-half of the monthly mortgage and one-half of the monthly utility and insurance payments were relevant factors which the chancellor should have considered in awarding alimony. "The court should never make an award of alimony so excessive as to oppress or dishearten the husband....” Timanus v. Timanus, 178 Md. 640, 643 (1940). Accordingly, we conclude that the award of alimony was excessive in relation to appellant’s income and expenses. Therefore, we shall remand this case for further proceedings on the issue of alimony.

In awarding appellee $3,000.00 in counsel fees, the court said: "Mrs. Strawhorn also asked that her husband be ordered to pay her counsel fees invoking Article 16, section 5A of the Annotated Code. Counsel fees exceed Six Thousand Dollars ($6,000.00). In this instance, I conclude that a contribution of Three Thousand Dollars ($3,000.00) would be more than equitable.” The test to be applied in awarding counsel fees was set forth by this Court in Quinn v. Quinn, 11 Md. App. at 652 (1971) as follows:

Counsel fees should be awarded according to the ordinary factors of labor, skill, time, and benefit; and the amount of the fee cannot be wholly disassociated from the financial resources of the party charged. Waters v. Waters, supra. As stated in Lopez v. Lopez, 260 Md. 509, 520-521, in determining the amount of the counsel fee to be paid by the husband to the wife’s solicitor, 'the court should take into consideration the financial circumstances of the parties, and determine the amount in accordance with the wife’s necessities and the husband’s financial ability, and allow an amount that will afford the wife an efficient presentation of her side of the controversy.’

See Flanigan v. Flanigan, 17 Md. App. 90, 97 aff'd. 270 Md. 335 (1973); Carney v. Carney, 16 Md. App. 243, 253 (1972). "[T]he sufficiency of the wife’s income may, and ordinarily should be considered separately in relation to her needs for normal living expenses, and her needs for such extraordinary expenses as counsel fees for divorce litigation.” Von Bretzel v. Von Bretzel, 10 Md. App. 512, 515 (1970). What constitutes a reasonable attorney’s fee is within the sound discretion of the trial court and evidence of actual hours expended is not necessary. In Foster v. Foster, 33 Md. App. 73 (1976), this Court observed:

In determining the amount for a reasonable counsel fee, the ordinary factors of labor, skill, time and benefit, as well as the financial resources of the parties, must be taken into account. While time is one of the applicable factors, the record need not contain evidence specifically delineating the number of hours spent by counsel. Because the record itself discloses the nature of the proceedings, it is some evidence of the extent of the attorney’s efforts. Given this evidence, the chancellor may rely upon his own knowledge and experience in appraising the value of an attorney’s services.

Id. at 77. (Footnotes omitted).

The record here shows that appellee had incurred attorney’s fees in the amount of $6,082.50 which represented approximately 81.1 hours spent by counsel at the rate of $75.00 per hour, and that appellee and her father had paid $2,845.84 of this amount. Under these circumstances we cannot say that the chancellor abused his discretion in ordering appellant to contribute $3,000.00 toward appellee’s counsel fees.

Appellee also requests this Court "to award her additional attorney’s fees together with costs, incurred by her on appeal.” Inasmuch as the issue of additional attorney’s fees to prosecute the appeal was not raised and decided below it will not be considered by this Court for the first time on appeal. Maryland Rule 1085. The Court of Appeals and this Court have repeatedly held that the trial court has jurisdiction to award counsel fees not only for the trial, but also for the prosecution of an appeal even after the appeal has been entered. See Rhoderick v. Rhoderick, 257 Md. 354, 359-362 (1970); Jackson v. Jackson, 272 Md. 107, 111-112 (1974); Staley v. Staley, 25 Md. App. 99, 111-114 (1975).

Order affirmed in part and reversed in part.

Case remanded for further proceedings as to alimony in accordance with this opinion.

Costs to be divided equally between the parties.

      . Article 67, section 4 of the Annotated Code of Maryland. This article was replaced and recodified under Courts and Judicial Proceedings Article, section 3-904.

      . See Article 16, section l(b)Cl)(ii) of the Annotated Code of Maryland which provides that in awarding alimony the court should consider, among other things, "any award made under §§ 3-6A-05 and 3-6A-06 of the Courts and Judicial Proceedings Article.”


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    WILLIAM L. HUFF v. JAMES W. HARBAUGH et al.
    [No. 1,
    September Term, 1981.]

      Decided October 7, 1981.

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

      Conrad W. Varner for appellant.

      Darrow Glaser for appellees.
   Thompson, J.,

delivered the opinion of the Court.

This is an appeal from the judgment entered by the Circuit Court for Washington County in favor of the appellees, James W. Harbaugh, et al., against the appellant, William L. Huff, in the amount of $25,550. Judgment was also entered in favor of Nationwide Insurance Co., co-defendant below. Harbaugh did not appeal.

I Facts

William Huff and Charles Harbaugh had known each other for thirty-five years. When Huff became an insurance agent twenty-four years ago, Harbaugh transferred all of his personal and business insurance to him. Almost all of the transactions between the two parties were conducted by telephone. The general mode of these transactions consisted of Harbaugh calling Huff to inform him that he had bought, or was buying, a building and required insurance. Huff would then advise Harbaugh that he would "take care of it.” Some time thereafter, Harbaugh would receive a policy in the mail. On at least one occasion when Huff was not able to place insurance with his company, he arranged for insurance coverage elsewhere. In the twenty years in which Huff served as Harbaugh’s agent, no request for the procurement of insurance had been refused.

In February 1973, Charles W. Harbaugh and his two sons purchased property in the City of Hagerstown, Maryland, located at 25-29 South Potomac Street, for the sum of $30,000. In order to finance the purchase of this property, Harbaugh, then retired, arranged for a mortgage loan through the Hagerstown Trust Company, such mortgage including two other properties owned by him on South Mulberry Street. Settlement was held on February 28,1973. As Harbaugh was a customer of long-standing, the loan officer of the bank proceeded with settlement even though Harbaugh did not have a written policy or binder showing his or the bank’s interest as was generally required. Harbaugh testified that he telephoned Huff on the day of settlement, asked for $30,000 coverage against fire loss, and was told by the appellant, "O.K., I got it — I’ll take care of it as usual.” Thereafter, Hagerstown Trust received insurance policies from Huff covering the buildings on South Mulberry Street, but no policy was received with respect to the South Potomac Street property.

On December 7, 1973, the appellees obtained a second mortgage from the Hagerstown Trust Company secured on the same properties encumbered by the mortgage dated February 28,1973. During this settlement, the bank’s mortgage loan officer noticed that the Bank had not received an insurance policy on Harbaughs’ South Potomac Street property. She thereupon placed a telephone call to the appellant, Huff, and handed the phone to the settlement attorney who advised Huff that the settlement could not be concluded without the required insurance. After this telephone conversation, the settlement was completed. On several occasions following the December 7 settlement, the mortgage loan officer telephoned Huff to inquire as to the insurance on the South Potomac Street property. In each instance, she was informed by Huff that there was insurance coverage and that the policy would be forthcoming.

On February 7 and 8, 1974, the Harbaugh property at 25-29 South Potomac Street was extensively damaged by fire. Glen Miller, Vice President of the Hagerstown Trust Company, upon learning of the fire, called Huff and was again assured that the building was covered and that the Hagerstown Trust Company was the loss payee. The building was not, in fact, insured.

Damage to the building was from two sources — the fire, which had spread from the adjoining property, and the negligent demolition of such neighboring property. A real estate appraiser valued the structure prior to the fire to have been between $37,000 and $40,000. Mr. Norman Earley, Jr., a commercial contractor who also appeared at trial, placed the cost of repairs to put the building in substantially the same condition as it was prior to the fire to be in excess of $63,000. This estimate did not include cost to repair the hole in the wall caused by the adjoining property’s demolition crew.

The appellees instituted suit on December 1,1976, against RKO Theaters, Inc., owners of the adjoining property, and Victor C. Ditto, the contractor who undertook the demolition of the RKO property, for damages resulting from the fire of February 7 and 8, 1974, and the subsequent demolition of the RKO property. RKO and Ditto subsequently settled their case by the payment of $25,250 and obtained a release from the appellees which provided in pertinent part:

"5. The Releasors are willing to and hereby do, release the Releasees only for all past or present claims for all damages arising from said occurrence and specifically including those amounts of damage claimed by Releasors for the loss by Releasors of rental income, loss and damage to the personal property owned by the Releasors in the tavern portion of the building, damage to the concrete sidewalk, repair and relocation of the air conditioning in the tavern portion, the puncturing of the north wall, the time, expense and inconvenience in connection with the processing of the claim, certain items of cost and fees, excluding attorney’s fees, in connection therewith, in the total compromised amount of TWENTY FIVE THOUSAND TWO HUNDRED FIFTY DOLLARS ($25,250.00).”
"6. It is the express understanding therein that Releasors are releasing their claims against the Releasees, only, and this release and compromised amount is not intended to be, nor shall it be construed to be, a release of any insurer, insurance company or insurance agent or broker, for any failure to place or provide insurance coverage for the property, which cause of action, if any, is expressly reserved to the Releasors.”

RKO subsequently contributed $23,000 and Victor C. Ditto paid $2,250.00 for a full release of all claims against them by the Harbaughs based upon their alleged negligence. The trial judge found that the moneys paid under this release were based upon Harbaughs' claimed losses of rental income and personal property and damages to the sidewalk and north wall of the building.

II Joint Tortfeasors

The appellant sets forth a two-prong attack on the trial court’s verdict in favor of the appellees, based upon the Uniform Contribution Among Tort-Feasors Act, Md. Ann. Code (1957) art. 50, §§ 16-24 (The Act). Appellant begins with the assertion that the trial court was clearly erroneous in finding that RKO, Ditto and Huff were not joint tortfeasors. He then proceeds to argue, in the alternative, that:

A. The release of RKO and Ditto, by the appellee, also releases appellant, or;

B. Appellant should be credited, pro-tanto, for the amount paid by RKO and Ditto for their release.

The Act, § 16 (a) defines joint tortfeasors as: "[T]wo or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.” (Emphasis supplied). Thus, reduced to a more basic concern, the issue becomes whether Huffs actions were "in tort” and whether they can be said to have resulted in the "same injury” to the Harbaughs as did the acts of RKO and Ditto.

The Act provides little guidance as to what the "same injury” would entail. Generally, when two parties have united to cause tortious harm to another the "same injury” to the individual is obvious, as for example when the negligence of the driver of one car and the negligence of the driver of a second car combine to injure a passenger. In such classic situation there can be no doubt as to the existence of the "same injury.” The problem becomes more difficult in situations where, for example, an individual is injured as the result of the negligence of another and in subsequently receiving medical treatment the individual receives additional injuries. Can it be said that the original and subsequent tortfeasors are responsible for the "same” injuries so as to render them joint tortfeasors under § 16 of the Act? Logically, it would depend upon the nature of the injury sustained from each of the various tortfeasors, and thus would be a question of fact.

In the present case the appellant alleges that the "same injury” test is met because RKO, Ditto and the appellant were all sued in negligence based upon fire damage to the appellees’ building. A closer look at the cause of action against the appellant reveals that its premise is not the fire damage to the building, but rather a breach of promise to secure fire insurance. Appellant’s actions are related to RKO’s only by the fact that were it not for the negligence of RKO and the resultant fire, the appellant’s failure to procure the insurance would not have been brought to issue. Thus, it would be more accurate to categorize the injuries caused by appellant and RKO as "related” rather than the "same.”

Additionally, it appears that the appellant’s liability was not based on tort law, per se, but on the product of the union of tort and contract law. Couch, Insurance 2d, § 25:46 provides that:

"An agent or broker is liable to his principal if by his fault or neglect he fails to procure or renew insurance as he contracted to do, and as a result of the want of insurance the principal suffers a loss. Such liability exists as one for breach of contract or as a tort in negligently failing to perform a duty imposed by contract.” (emphasis added), (footnotes omitted).

The appellees initially brought suit alleging counts in both contract and tort. The trial judge combined the two theories and characterized the union as a "tortious breach of contract.” In determining whether such category is to be viewed as being essentially tortious or contractual in nature for purposes of the applicability of the Act, the observation of this Court in Bogley v. Middleton Tavern, 42 Md. App. 314, 400 A.2d 15 (1979), rev’d. on other grounds, 288 Md. 645, 421 A.2d 571 (1980), is helpful. There it was stated:

"Appellant correctly recognized that where questions of contract and negligence causing a breach of that contract arise, the better analysis focuses on the contract question, i.e., whether an agency relationship existed, whether the principal was disclosed, partially disclosed or undisclosed in the questioned transaction, and what authority was vested in the agent. When these elements are addressed in the cause of action, the breach of contract commands our attention once the causal negligence of the agent is ascertained.” Id. at 324.

Cf., Canatella v. Davis, 264 Md. 190, 286 A.2d 122 (1972) (contractual act negligently performed). Compare Loh v. Safeway Stores, Inc., 47 Md. App. 110, 422 A.2d 16 (1980), where this Court dealt with the issue of whether a suit for breach of implied warranty could be a "claim in tort” for purposes of the Act. There it was concluded that "the warranty action, albeit a 'freak hybrid,’ [of a cause of action sounding in tort and contract] differs little in fact in products cases from 'causes of action sounding in tort.’ ” Id. at 121. Thus the warranty action was held to sound sufficiently in tort as to fall within the confines of the Act.

Despite the various views propounded as to whether an action containing elements of both tort and contract should be viewed as essentially tortious in nature or contractual, the determining factor is based on a factual predicate. The appellant had been asked to procure $30,000 worth of insurance protection for the appellees’ building. He agreed to take care of the matter just as he had done on numerous other occasions. When the discussed policy, or other evidence of coverage failed to arrive through the mail, the appellees as well as representatives of the Hagerstown Trust Bank were assured by the appellant that the agreed coverage had been obtained. It had not. The trial judge concluded on the basis of all the evidence that "Bill Huff [appellant] is liable to Charles Harbaugh and sons [appellees] by breach of his agreement with Harbaugh to provide $30,000 insurance coverage against loss by fire by negligently failing to procure that insurance to protect his principal.” We agree with this conclusion. The appellant was clearly negligent in the manner in which he behaved with respect to the agreement; however, the essential nature of his behavior remains the breach of contract with the appellees.

In summary, the setting forth of the § 16 definition of joint tortfeasors reveals an intent to require a closer relationship between wrongdoers with respect to cause of action and injury than exists in the present case.

Ill Release

The appellant contends that the release procured by RKO and Ditto also serves to release all claims against the appellant. This contention is primarily based upon the alleged existence of a joint tortfeasor relationship between the parties. As previously discussed, this Court holds that such relationship did not exist within the meaning of the Act. The issue thus becomes whether the release of RKO and Ditto has any effect on the appellant outside the purview of the Act.

In discussing the history and treatment of releases in Maryland, the Court of Appeals stated the following in Trieschman v. Eaton, 224 Md. 111, 166 A.2d 892 (1961);

"In the beginning independent wrongdoers liable for the same loss were not absolved by the release of one. Gradually the rule of release governing joint wrongdoers was extended to independent tortfeasors and it has become the law of most of the States. It was declared to be the law of this State in Cox v. Maryland Elec. Rwys. Co., [126 Md. 300, 95 A. 43 (1915)]. The Court held that where one concurrent tortfeasor, who had been sued, paid an agreed amount in full to the injured person who caused to be made a docket entry in the case of 'agreed and settled and all claims therein satisfied,’ there had been full satisfaction which discharged the other tortfeasor and barred a subsequent suit against him. The Court said that unlike the rule in some States, in Maryland 'it is not essential that the party with whom the settlement is made or by whom the release is given shall be a joint tortfeasor in order to release others from liability.” Id. at 117.

See also, Cox v. Maryland Elec. Rwys. Co., 126 Md. 300, 95 A. 43 (1915); Grantham v. Prince George’s County, 251 Md. 28, 246 A.2d 548 (1967); and Pemrock, Inc. v. Essco Co., Inc., 252 Md. 374, 249 A.2d 711 (1969).

The common thread weaving its way throughout each of these cases is that there can be but one recovery for a single wrong. Such is the principle we will adhere to in rendering this opinion. Expounding upon this basic premise the Court of Appeals commented in Cox v. Maryland Elec. Rwys. Co., supra:

"If the [two defendants] had both been sued in the first case for the injury there alleged, there could, of course, have been but one recovery. And it would seem to be very clear, upon reason and authorities as well, that the same result must follow when the same injury is caused by the independent acts of several wrongdoers. The reason of this rule is apparent. It is neither just nor lawful that there should be more than one satisfaction for the same injury, whether that injury be done by one or more....” Id. at 305-06.

Taking this premise to the next logical step, it would appear that where it can be established that there is more than one wrong at issue, involving independent parties, the release of one wrongful party would not serve to release any other. Such was demonstrated in the case of Kyte v. McMillion, 256 Md. 85, 259 A.2d 532 (1969). In Kyte, the plaintiff was injured as a result of the acts of two successive tortfeasors, each act causing a separate and distinct harm: first, the plaintiff was injured while a passenger in a negligently driven automobile, and second, the plaintiff experienced new and separate injuries as the result of the negligence of the hospital nurse who transfused plaintiff with mismatched blood. The Court held that the subsequent release of the hospital nurse, specifically limited to the injury resulting from the negligent transfusion, did not preclude the plaintiff from asserting a claim against the driver for injuries stemming from the automobile accident. In rendering this decision the Court reiterated the principle that "there can be but one satisfaction for the same injury.” However, it was held that because the plaintiff had sustained two injuries of which only one had been satisfied, she was not precluded from initiating suit against the other party. Emphasis was placed on the "wholly divisible” nature of the injuries incurred.

In accord with the foregoing principles we hold that where a wrong consists of separate and distinct, although closely related, injuries for which the parties are respectively liable, then the release of one with respect to his wrongdoing will not discharge the other from liability for his share in the transaction.

In view of this holding we need not address the issue of the effect of the express reservation within the release upon the liability of Huff.

IV Contributory Negligence

Appellant contends that the appellees were contributorily negligent in that, based on the appellees’ experience with respect to commercial real estate, they should have known that the building at issue was not covered by insurance when a policy or binder had not been received for a period of twelve months.

Prosser, Torts, p. 416-17 (4th ed. 1977) defines contributory negligence as follows:

"Contributory negligence is conduct on the part of the plaintiff, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection. Unlike assumption of risk, the defense does not rest upon the idea that the defendant is relieved of any duty toward the plaintiff. Rather,, although the defendant has violated his duty, has been negligent, and would otherwise be liable, the plaintiff is denied recovery because his own conduct disentitles him to maintain the action.” (footnote omitted).

See also, Hooper v. Mougin, 263 Md. 630, 284 A.2d 236 (1971).

We agree with the trial court’s finding of an absence of contributory negligence on the part of the appellees. Charles Harbaugh, one of the appellees, had known and been friends with the appellant, Huff, for a period of 35 years. When appellant became an insurance agent, Harbaugh transferred all of his insurance business to him. In the twenty years in which Huff acted as insurance agent for Harbaugh, at no time did he fail to produce the requested insurance. In view of this extensive history of satisfactory dealings between the parties and the continuing misrepresentations to both Harbaugh and the bank, it cannot be said that Harbaugh should have been aware that the requested insurance did not exist.

V Statute of Limitations

The appellant contends that the appellees are barred from maintaining their suit in that it was not brought within three years of the time in which he should have discovered his building did not have fire insurance. The trial court disagreed stating:

"Since Mr. Huff continually maintained that he 'would get the coverage’ and it was not until after the fire on February 8,1974 when it was discovered that he had not, the plaintiff was kept in ignorance of any cause of action through the statements of the defendant. The cause of action did not accrue until Harbaugh first had knowledge that Mr. Huff had failed to perform his duty — February 8, 1974. Since this suit was brought on February 4,1977 the statute had not run.”

We perceive no error in this holding. Poffenberger v. Risser, 290 Md. 631, 431 A.2d 677 (1981).

VI Damages

Finally, the appellant asserts that he should be credited pro tanto for the amount paid by RKO and Ditto to secure their release. As previously discussed, the Maryland cases have adhered to the principle that "there can be but one satisfaction for the same injury.” Thus, in analyzing the validity of the award of damages in the present case we must determine whether the appellees are being compensated twice for the same injury.

It has already been established that the appellees suffered two distinct injuries: one from the appellant in his breach of contract and another from RKO and Ditto in their imposition of physical damage to the appellees’ premises. What must be evidenced under the one injury-one satisfaction rule is that each of these distinct injuries has been monetarily compensated for in a manner involving no duplication.

The standard for computation of damages has been recognized by this Court in Patterson Agency, Inc. v. Turner, 35 Md. App. 651, 372 A.2d 258 (1977), where it was stated:

"When, as here, the agent or broker fails to procure the insurance, and an intervening casualty occurs before the agent or broker can notify his principal of non-availability so that insurance might be obtained from another, the agent or broker is liable to the insured, his estate, or those claiming under him in the amount that would have been due under the policy had it been obtained.” Id. at 657.

See also, Lowitt v. Pearsall Chemical, 242 Md. 245,219 A.2d 67 (1966).

The appellees had requested appellant to procure $30,000 worth of insurance for the building on South Potomac Street. In July 1973 the appellant applied to Nationwide for "$30,000 or Coverage A: Building or Structure” against loss by fire. Testimony at trial revealed that under the standard fire insurance policy the insurer would agree to pay the actual cash value of the loss and the expense of debris removal as long as the two elements did not exceed the face value of the policy. "Actual cash value” was defined as replacement cost minus a depreciation factor, with such determination being made by an adjustor. The trial judge noted that no evidence was introduced by the appellant with respect to what depreciation factor would have been employed in the adjustment of this loss had a policy been issued. The court opined that the burden of producing such evidence should not be upon the appellees as they had brought forth evidence as to both replacement cost, i.e., $60,000, and fair market value, i.e., $37,000 — $40,000. Once the appellees had established that both the replacement cost and the fair market value of the building exceeded the amount of the desired coverage the trial court found that the burden of proof shifted to the appellant to show that had a policy been issued, the insurer would have paid an amount less than the face value of $30,000. We agree.

This Court is also satisfied that there is no double recovery by the appellees. The amount received with respect to the release of claims against RKO and Ditto have been demonstrated to be compensation for the loss of rental income and personal property damages, i.e., items outside the purview of the proposed fire insurance coverage. The only aspects of the compensation which fall within potential policy coverage are the cost of the debris removal, $2,200, and the cost of reparation of the north wall, $2,250. As the trial judge offset the amount to be received by appellees by the sum of these two figures, namely, $4,450, we believe the final verdict of $25,550 fairly and adequately compensated the appellees without giving them the windfall of a double recovery.

VII Assumption of Risk and Right of Subrogation

The appellant additionally asserts the defense of assumption of risk on the part of the appellees and claims a right of subrogation. As these claims were not offered at the trial below, they have not been preserved for review. Md. Rule 1085.

Judgment affirmed.

Appellant to pay the costs.

      . "The terms 'joint tort’ and 'joint tortfeasors’ have been surrounded by no little uncertainty and confusion. There have been various attempts to define them, and to propose tests of one kind or another as to when this may be found to exist. An examination of the multitude of cases in which they are to be found leads to the conclusion that they have meant very different things to different courts, and often to the same court, and that much of the existing confusion is due to a failure to distinguish the different senses in which the terms are used, which often has had an unfortunate effect upon the substance of the law.” Prosser, Torts p. 291 (4th Ed. 1977).

      . Even were we to hold that a joint tortfeasor relationship existed under these facts, the release of RKO and Ditto would not per se release Huff in light of § 19 of the Act which provides:
      "A release by the injured person of one joint tort-feasor, whether before or after judgment, does not discharge the other tort-feasors unless the release so provides; but reduces the claim against the other tort-feasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid.”


author: Lowe, J.,

text:
    BRUCE C. HILL, Trustee v. PARKWAY INDUSTRIAL CENTER
    [No. 44,
    September Term, 1981.]

      Decided October 7, 1981.

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

      Stanley H. Katz, with whom were B. Marvin Potler and Steinberg, Schlachman, Potler, Belsky & Weiner, P.A. on the brief, for appellant.

      Thomas Waxter, Jr., and Norman E. Parker, Jr., with whom were Semmes, Bowen & Semmes on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

This is an appeal from the Circuit Court for Anne Arundel County by Bruce C. Hill, Trustee (Hill) of the Estate of C. George Mills and Sons, Inc. (Mills) who was awarded $315.06 of a claim against Parkway Industrial Center (Parkway) for $8,229.25. The latter amount was said to be due on a contract with Mills to build a bank and office building on Parkway’s property. Mills subcontracted with Barber-Coleman Company to furnish and install temperature controls on the project. By October 25, 1978, Barber-Coleman substantially completed its work for Mills.

On December 22, 1978, Mills executed a Deed of Trust for the benefit of creditors and appellant Bruce C. Hill was named Trustee. Five days later, on December 27, 1978, Barber-Coleman notified Parkway of its intent to claim a mechanics’ lien against the project property belonging to Parkway. On January 17, 1979, the Circuit Court for Baltimore County assumed jurisdiction of the Trust Estate of Mills. Meanwhile, on April 10,1979, the Circuit Court for Anne Arundel County ordered a mechanics’ lien established in favor of Barber-Coleman against Parkway for $7,914.19 and ordered the property sold unless paid on or before April 30,1979. Parkway paid Barber-Coleman to effect the release of the lien in compliance with the court order.

On May 29, 1980, Hill as Trustee for Mills, sued Parkway to obtain the payments which Parkway had withheld because Mills had allegedly failed to complete its work and finish the job, or to fulfill its guaranties, pay its subcontractors and provide Parkway with lien releases.

The trial court found that Mills had substantially performed its work under its contract with Parkway and was therefore due $8,229.25 from Parkway as of November 9, 1978. The court also found that Barber-Coleman had substantially completed its work under the agreement with Mills, and that Barber-Coleman was due its payment upon completion of the work on October 25, 1978. The court ruled that Parkway had the right to withhold funds owed to Mills under the Mechanics’ Lien Law, Md. Real Prop. Code Ann. § 9-104 (f) (1980), and that it was proper to set off Parkway’s payment to Barber-Coleman to effect the release of the lien against Parkway’s debt to Mills. Judgment was entered in favor of the plaintiff Trustee in the amount of $315.06 (the difference between the $8,229.25 due Mills and the setoff of $7,914.19 paid by Parkway to Barber-Coleman). Hill appealed.

Pursuant to the Mechanics’ Lien Law, Md. Real Property Code Ann. § 9-104 (f) (1980), the owner of the land upon which improvements are made may withhold sums due a contractor in the amount the owner ascertains to be due a subcontractor who has notified the owner of an intent to claim a lien. To avoid this statute appellant contends that Parkway is in this case both owner and contractor because of the contractual terminology so specifying.' Because appellee "is not an owner exclusively. . .”, appellant claims that appellee may not avail itself of the right to withhold under § 9-104 (f). Appellant contends semantically that appellee as owner may withhold payments only from itself as contractor. The chancellor charitably addressed this contention as a "fine distinction” but nonetheless held that Parkway was an owner entitled to invoke the rights under § 9-104 (f).

The Mechanics’ Lien law was designed, in part, to provide the property owners as a second source of payment since they receive the ultimate benefit of services and materials and, as a practical consideration, control the cash. Palmer Park Ltd. v. Marvelite, Inc., 255 Md. 121, 126 (1969). That appellee was such an owner was a finding of fact which we do not find to have been clearly erroneous in light of the § 9-101 (e) definition.

Appellant alternatively argued that appellee had no right to withhold because Mills had substantially completed its contract. This argument is obviously predicated upon the success of the former contention and need not be met in light of our holding; however, we are compelled to point out, as noted by appellee, that while the court factually found that Mills "had completed work by the 9th of November 1978 that totals eight thousand two hundred and twenty-nine dollars and twenty-five cents”, the finding was to establish only the predicate for the trustee’s claim vis-a-vis the setoff. The chancellor did not hold that the assignor had "completed its promissory duty”. The record clearly indicates the contrary. Mills notified Parkway on December 18, 1978 that it could not complete the work or pay its subcontractor, nor did it submit its waiver of liens sheet. Although the issue was not presented to, or decided by, the trial judge, such conduct was hardly a performance of Article 6 of the agreement between Parkway and Mills which stated in part:

"Before issuance of the final payment the Subcontractor [Mills], if required, shall submit evidence satisfactory to the Contractor [Parkway] that all payrolls, bills for materials and equipment, and all known indebtedness connected with the Subcontractor’s Work have been satisfied.”

But the issues relating to the chancellor’s factual findings are merely a prelude to the heart of the appellant’s contention. Hill’s legal arguments are summarized by him in two sentences:

"I. In order for a claim of a debtor of an assignor for the benefit of creditors to acquire a claim against the assignor, that may be used as a setoff to the debtor’s own liability, that claim must arise before the date of the assignment for benefit of creditors.”
"II. A claim against the assignor for the benefit of creditors must arise before the date of the commencement of proceedings for the assignment for the benefit of creditors in order to have a setoff against the trust estate which would not be a preference.”

Both of appellant’s arguments concerning what claims may be used as setoffs deal almost exclusively with when the claim arises. He relies primarily upon Richardson v. Anderson, 109 Md. 641 (1909) which he refers to as the "seminal case in Maryland dealing with the law of assignment for the benefit of creditors”. In Richardson, the Maryland Grain Agency executed a deed of trust for the benefit of creditors on February 27, 1908. Anderson was the trustee. Richardson had been the agency manager and owed the agency $1,541.71 for which Anderson, as trustee, sued him. Among Richardson’s defenses was a claimed equitable setoff for the amount of a note then due to George Merryman from whom Richardson obtained it by endorsement after the assignment by Maryland Grain for the benefit of its creditors.

The Court of Appeals pointed out that it would be unjust, inequitable and intolerable in law or equity to permit a debtor to purchase, for a small consideration, claims against the assignor and acquire preferences in the distribution of the trust estate. Id. at 645.

Richardson had also been an accommodation endorser, prior to the assignment, for an agency indebtedness which came due after execution of that deed of trust. The Court decided that in order for there to be a setoff in favor of the creditor of the assignor, the debt must exist at the time of the assignment by virtue of a claim then due. Id. at 646.

From these two issues in Richardson, appellant in the case before us has concluded several rules of law governing assignment for the benefit of creditors. First he concedes the primary Richardson predicate:

That an assignee for the benefit of creditors takes property subject to all existing equities...,

and further that

The equities need not exist at the inception of the debt.
It is sufficient if they exist prior to the assignment.

But these concessions are made in passing to reach the rule upon which his arguments rest:

A claim acquired after the assignment cannot be set off against the assignee; nor a liability, existing but not due at the time of the assignment, even if it becomes due before the suit was commenced.

In order to determine when a claim is acquired one first must determine what the term means. "Claim” is defined by Black’s Law Dictionary (333 3rd ed., 1944) as

"A legal capability to require a positive or negative act of another person.” (emphasis added).

Appellant, however, equates the establishment of a lien for priority purposes with when a "claim” is due. While it is certainly true that a mechanics’ lien does not attach until it is established by the court after procedural conformity, Mervin L. Blades and Son, Inc. v. Lighthouse Sound Marina and Country Club et al., 37 Md. App. 265, 27 (1977), the lien is only a means of receiving payment, it is not the claim upon which the lien is founded. The debt or claim upon which a lien is predicated becomes due when the work is done or the materials supplied. For ninety days after completion a subcontractor is given a statutory alternative against which he may proceed on the debt that has come due. The claim to which he is, upon completion, entitled is consummated and collected simply by notifying the property owner, § 9-104 (a), and proceeding as outlined in the statute within 180 days after the work is finished or the materials furnished, § 9-105 (a). The statute clearly presupposes a debt due when the work was completed, which it was here by Barber-Coleman no later than October 25,1978, as factually found by the chancellor.

The term "claim” is more analogously interpreted here in light of its use in the second issue raised by Richardson. The second issue was whether Richardson could set off against his indebtedness to the assignor the payment on a note of the insolvent for which he (Richardson) was an accommodation endorser. The Court ruled that in order for there to be a setoff in favor of the creditor of the assignor, "it must exist at the time of the assignment by virtue of a claim then due.” Id. at 646, but it indicated that what it considered a "claim then due” was the exposure of the accommodation endorser on the note in question. The note had not come due prior to the assignment in that case and therefore the assignee took the claim his assignor had against Richardson free of any right of setoff. The Court pointed out that but for the assignment, Richardson, as accommodation endorser, could have paid off the note and set off the amount so paid by him against his debt due the agency "at any time before the trial of the case”, wherein the agency had sued him. Id. at 648. The equitable implication follows for purposes here that one of the equities that existed at the time of the assignment in this case (to which the claim against Parkway was subjected when taken by the assignee) was the statutory responsibility to pay the debt due Barber-Coleman when its work was completed by October 25, 1978, prior to the assignment, if called upon to do so by the subcontractor. Parkway, therefore, had the right to protect itself by payment when it was notified to do so, and the duty to do so when compelled by court order "before the trial of the case” here appealed.

To have construed Richardson as appellant would have us do, would create the harsh and unfair result of having equity courts compel Parkway to pay twice a single debt. Richardson simply holds that a defendant has all of the rights after an assignment that he would have had before it, but not one whit more — and that seems fair indeed. He may not take advantage of an insolvent’s misfortune by buying claims or paying off debts to which he had not yet been exposed simply to gain an advantage over fellow creditors; but he need not double their advantage over him by twice contributing involuntarily because of an exposure before the assignment which was statutorily imposed and judicially enforced. Neither Richardson nor the Mechanics’ Lien Law ever intended such a result.

Judgment affirmed.

Costs to be paid by appellant.

      . Md. Real Prop. Code Ann. § 9-101 (e) (1980):

        "Owner. — 'Owner’ means the owner of the land except that, when the contractor executes the contract with a tenant for life or for years, 'owner’ means the tenant.”

      . Constituting such a payment as a statutorily proscribed "preference” through a rather convoluted reasoning process also avails appellant naught. To do so he again fails to distinguish between the attachment of a lien and exposure to the debt upon which the lien is predicated. We will not address that issue further except to say that appellant’s concern for the creditors causes us to muse upon how much pecuniary advantage these creditors would have achieved — even with a favorable result — after the $7,914.19 claim had wended its way through the appellate process.


author: Gilbert, C. J.,

text:
    CLARENCE E. LEATHERWOOD, JR. v. STATE OF MARYLAND
    [No. 15,
    September Term, 1981.]

      Decided October 8, 1981.

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

      John E. Welsh for appellant.

      Jane E. Pilliod, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, George S. Lantzas and Daniel L. Doherty, III, Assistant State’s Attorneys for Anne Arundel County, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

It is written that "Freedom is Not Free.” In fact, to remain "free” often costs dearly. Not only must a military force be maintained, local, State, and federal governments operated, but schools, fire protection and police protection must all be supported.

For its part, the State government may not simply print a form of currency to pay for the operation of the various State agencies, all of which exist for the benefit of all the people of the State. Consequently, to obtain adequate funds to carry out its mission, the State imposes divers taxes.

One type of tax that the State of Maryland has utilized since 1940 is the progressive income tax. Md. Ann. Code art. 81, § 294, provides in part:

"(a) Individuals generally. — (1) Every individual resident of this State, and every individual not a resident of this State receiving income derived from sources within this State, other than fiduciaries, who is required to file a federal income tax return under the provisions of § 6012 (a) of the Internal Revenue Code, as amended from time to time, or whose federal income together with any modification additions contained in § 280 (b) of this subtitle exceed the limits provided by said § 6012 (a), shall file with the Comptroller a return in such form as the Comptroller shall prescribe, and shall attach to said return a copy of the statement received from his employer showing his compensation, salary or wages and the Maryland income tax withheld therefrom.
(2) Notwithstanding any other provision of this section to the contrary, the income level at which a dependent taxpayer must file a tax return is determined under the provisions of § 6012 (a) (1) (A) (i) of the Internal Revenue Code, as amended from time to time, together with any modifications contained in § 280 of this subtitle.
(3) Notwithstanding any other provisions of this subtitle to the contrary, any individual not required to file an income tax return to this State in accordance with the provisions of this subsection, shall not be liable for any income tax otherwise due under this subtitle. Such individual, by filing a return in such form as prescribed by the Comptroller, shall be entitled to a refund of all income taxes either withheld or paid as an estimated tax under the provisions of § 312 of this subtitle.”

The appellant, Clarence E. Leatherwood, Jr., filed the prescribed tax form for each of the years 1977, 1978, and 1979. Yet, in none of the forms did he report any income whatsoever, but instead, indicated that he objected to revealing his income. He elected to stand behind the protective garb of the Fifth Amendment To the Constitution of the United States.

Needless to say, the Comptroller was not enraptured with the returns filed by the appellant. Attempts were made to have Mr. Leatherwood file completed reports, but those efforts failed. Mr. Leatherwood, however, indicated that he would be willing to file the reports if the State could show him how he could do so without disclosing either the amount of his income or the source. Understandably, the Comptroller did not avail himself of Mr. Leatherwood’s invitation, nor could he have successfully done so.

Finally, the matter of appellant’s non-disclosure of income and failure to file completed tax returns found its way to the State’s Attorney for Anne Arundel County. Three criminal informations were issued by the prosecution. Mr. Leatherwood was charged with two counts of perjury in connection with each of his 1977, 1978, and 1979 Maryland Income Tax Returns, one count in each of failure to file by reason of refusing to report his 1977,1978, and 1979 income, respectively, and one count in each of wilfully failing to file his 1977, 1978, and 1979 State Income Tax Returns, respectively.

At the conclusion of the State’s case, Judge Bruce C. Williams, in the Circuit Court for Anne Arundel County, granted a judgment of acquittal on both perjury counts. Ultimately, the case went to the jury, which returned a verdict of guilty to count three of each information. Following the imposition of sentence, Leatherwood appealed to this Court.

We shall consider the two questions put to us by the appellant in the reverse order to that posed by him, inasmuch as his second issue, if availing, would be dispositive of the appeal.

I.

"Is the Maryland Income Tax Statute unconstitutional since it constitutes an imper missive delegation of legislative responsibility under the Maryland Constitution?”

Md. Ann. Code art. 81, § 280, provides in pertinent part:

"(a) In general. — The taxable net income of an individual taxpayer of this State shall be that taxpayer’s federal adjusted gross income as defined in the laws of the United States, as amended from time to time and in effect for the corresponding taxable year, with the modifications and less the deductions and personal exemptions provided in this subtitle.”

Leatherwood recognizes that the Court of Appeals has held that "[t]he State’s adoption of the Federal definition of income does not constitute a delegation oflegislative authority. ..,” Katzenberg v. Comptroller of the Treasury, 263 Md. 189, 200, 282 A.2d 465 (1971). He asserts, however, that the conclusion reached by this State’s highest court "is unsupported by the cited authority and should be re-examined.” In short, we are asked to overrule Katzenberg and declare the State income tax law to be unconstitutional. To follow that course, we would have to ignore three other subsequent cases decided by the Court of Appeals, scilicet: Comptroller v. Diebold, 279 Md. 401, 369 A.2d 77 (1977); Evans v. Comptroller of the Treasury, Income Tax Division, 273 Md. 172, 328 A.2d 272 (1974); Marco Associates, Inc. v. Comptroller of the Treasury, 265 Md. 669, 291 A.2d 489 (1972).

Marco quoted from Katzenberg that:

" 'It is undoubtedly true that the General Assembly, had it seen fit to do so, could have imposed a tax on the taxpayer’s gross income, without considering the source from which it came, whether it be earnings, investment income or profits realized from the sale of capital assets, and without granting exemptions, allowing deductions or permitting any other adjustments. If it could validly do this, and we think it could, there is no reason to doubt that it could select some other figure, objectively, arrived at, upon which the tax could be based, Tawes v. Strouse, 182 Md. 508, 512-13, 35 A.2d 233 (1943). It did this when it chose to base the tax on the figures for adjusted gross income and taxable income, as developed by the federal returns. 263 Md. at 205-206.’ ” 265 Md. at 677.

Evans said, in 273 Md. at 175:

"Finally, we consider Evans’ contention that Maryland cannot constitutionally use as a basis for State income taxes the adjusted gross income figure developed by a taxpayer’s federal income tax return. The use of the taxpayer’s federal adjusted gross income is mandated by Code art. 81, § 280 (a). As we noted in Katzenberg v. Comptroller, supra, 263 Md. at 204-05, 282 A.2d at 473, '[t]his is a formula or yardstick objectively derived which initially takes no account of the source, nature or composition of the funds... .’”

Diebold stated:

"[W]e have held that the Maryland income tax law is to be construed in a fashion conformable to the Internal Revenue Code to which it is inextricably keyed, Marco Associates, Inc. v. Comptroller, . . . [supra]; Katzenberg v. Comptroller,... [supra].” 279 Md. at 408-09.

We think it clear that the Court of Appeals has had ample opportunity to review its Katzenberg holding and that it has repeatedly upheld the constitutionality of the Maryland income tax law. If an appellate court is to retrace the path trod by the Court of Appeals and conclude that the income tax law of this State is unconstitutional, it is the Court of Appeals that must make the journey, not this Court.

On the basis of the prior, well-reasoned and unambiguous decisions of the Court of Appeals, we have no hesitancy in declaring that the Maryland State Income Tax Law is constitutional and does not contain, with respect to section 280, an unlawful delegation of legislative authority.

II.

"The trial judge’s instructions to the jury were legally insufficient and clear error since they misstated [the] scope of the Fifth Amendment privilege and failed to indicate that an erroneous but good faith reliance on the Fifth Amendment would preclude a finding of willfulness.”

Undoubtedly, the Fifth Amendment to the federal constitution protects against compelled self-incrimination. The amendment, however, does not protect against every conceivable question that may be put to an accused, but only those that tend to incriminate him. Pyles v. State, 25 Md. App. 263, 334 A.2d 160, cert. denied, 276 Md. 748 (1975).

Leatherwood’s 1979 State Income Tax Return showed that he answered the questions: "Your occupation”; "Spouse’s Social Security Number”; "Spouse’s Occupation”; "Your filing status,” i.e., "Single,” "Married filing joint return or spouse had no income,” "Married filing combined separate returns on this form,” "Married filing separately,” "Exemptions” and "Other exemptions allowed by Maryland” with the words: "Object. Self-Incrimination.”

When Leatherwood was called by his counsel to testify, he said he inspected cars for a used car dealer. He was audited by the Internal Revenue Service for the tax year 1974. As a result of that audit, I.R.S. allegedly informed him that he owed an additional $1,700 federal income taxes. Later, I.R.S. advised him that they owed him "three hundred odd dollars.” Finally, his indebtedness was determined to be "two hundred seventy odd dollars.” He claimed that his "reaction” to the I.R.S. "duress” caused him to have "nervous tension,” and that he "was afraid of them.”

Leatherwood further told the jury that there was a connection between I.R.S. and the State Income Tax Division. He said they "have reciprocal agreements for information. And they exchange information that’s on your 1040 form.” He had no objection to paying State income taxes, but he refused to divulge the amount of his income.

The appellant had read a number of magazine articles and newspaper accounts about I.R.S. harassment of taxpayers and government control of individuals through the offices of I.R.S. Leatherwood relied particularly upon page 14 of a publication titled: Citizen’s Guide to Individual Rights Under the Constitution of the United States of America. The language of that article that Leatherwood believed controlling in his tax matters reads:

"Government regulations which required registration of items such as highly dangerous weapons or narcotics which were a crime to possess also have been invalidated on the grounds that they require information which may be used in criminal prosecution against the person who registers the item in question. However, one is not excused from fíling a tax return because it is incriminatory: the privilege must be asserted on the return or it will be waived. ” (Emphasis supplied.)

Leatherwood reported that he did not intend to evade or defeat the payment of Maryland income taxes. He said, "I mean, if I can uh, if I can pay income tax without giving up my rights under the constitution [not to reveal the amount of income], I’ll be glad to.”

On cross-examination, he again stated that he was "afraid of the IRS” because he had gone "through a, a trying situation with . .. [an] audit.” He was also "afraid” that he would be charged with "a crime” if he completed the information required on his Maryland Income Tax Report. Leatherwood opined that, "I’m afraid that I might be in ... an unlawful position with the Securities and Exchange Commission. The Federal Trade Commission.” With respect to the S.E.C., his "fear” was generated by his having bought stocks. He did not explain his comment about the F.T.C.

Judge Williams instructed the jury in pertinent part:

"Now in this case, there really is not too much dispute as to what the facts are. And I think that the testimony as you have heard it, clearly would indicate that there is not much dispute. And it is for you to interpret what you have heard in terms of the law as I shall further attempt to explain it to you. Failure to file a Maryland income tax return is the willful failure to file a Maryland income tax return in the manner or fashion prescribed by the provisions of Maryland Law and/or the willful refusal to report the amount of income received or earned during the taxable period. The term "willful” for the purposes of these instructions means voluntary, deliberately and intentionally; as distinguished from accidentally, inadvertently or negligently. Willfulness in the context of a failure to file a proper tax return simply means a voluntary intentional violation of a legal obligation to file such a return. An individuals’ [sic] fifth amendment privilege does not permit a person to completely refuse to disclose on his income tax return, any information relating to his income. You are instructed that three essential elements must be proven to establish each of the offenses charged in the ... [information]. And, for purposes of these instructions, Counts Three and Four of each ... [information] charging the defendant with failure to file a Maryland income tax return are the only charges that will be submitted to you for your consideration. Those are Counts Three and Four in ... information 23, 764, 765 and 766.
First, that the defendant was the person required by law or regulation to make a return of his income for the year in question. Second that the defendant failed to make such a return at the time required by law. Third, that the defendant’s failure to make a return was willful. The burden is on the prosecution to prove all three elements of the offense charged beyond a reasonable doubt. The law never imposes on the defendant in a criminal case the burden of producing any evidence or calling any witnesses. If you find that the prosecution failed to prove any element of the three elements, you must find the defendant not guilty.
Unless the State proves beyond a reasonable doubt that the defendant has committed every element of the offense, with which the defendant is charged, then you must find him not guilty. You are instructed that one of the primary functions of the Fifth Amendment privilege against self incrimination is to protect innocent men. Every person is entitled to the full enjoyment of his constitutional privilege against self incrimination.
You are further instructed that if a person wishes to assert his right against self incrimination regarding specific items on a tax return, as to the source of his income, he must do so on the tax return itself, or forever waive the privilege.”

Immediately following the instruction, counsel conferred with the judge about exceptions to his jury charge:

"Mr. Welsh [appellant’s counsel]:. .. And then I’d take exception to the Court not reading. And I wrote the number down, Your Honor.
The Court: Well maybe you can use this for purpose of reference.
Mr. Welsh: Right. Re — not reading defendant’s jury instruction number ten eleven twelve thirteen and fourteen fifteen sixteen.”

With respect to the appellant’s prayers numbers 10, 11, 12, 13, 14, 15, and 16, Judge Williams’ instructions were adequate. The judge was not required to give each instruction asked by the appellant in the precise wording of the appellant. The law is satisfied if the trial court’s instructions read as a whole adequately and clearly state the law applicable to the case. Nizer v. Phelp, 252 Md. 185, 249 A.2d 112 (1969); Alston v. Forsythe, 226 Md. 121, 172 A.2d 474 (1961); Kable v. State, 17 Md. App. 16, 299 A.2d 493, cert. denied, 268 Md. 750 (1973); Shotkosky v. State, 8 Md. App. 492, 261 A.2d 171 (1970). While the road map verbally drawn for the jury by the judge could have been more precise, it was sufficient for the jury to find its way through the maze of law. We perceive no error.

Appellant’s counsel also voiced his objection to an instruction requested by the State, which the judge apparently granted. The objection to the instruction took the following form:

"And I also object to ... the . .. Fifth Amendment, instructions which was submitted by ... the State in the Court Room. (Unintelligible).”

Md. Rule 757 f provides:

"If a party has an objection to any instructions, to any omission therefrom, or to the failure to give an instruction he shall make objection on the record before the jury retires to consider its verdict and shall state distinctly the matter of omission, or failure to instruct to which he objects and the grounds of his objection. Upon request of any party, the court shall receive objections out of the hearing of the jury.” (Emphasis supplied.)

We think the appellant’s exception to the trial judge’s jury instruction is neither clear nor distinct. The mere statement that appellant "objects to the . .. Fifth Amendment instructions ... submitted by ... the State” simply does not meet the requirement of the rule that a party furnish the trial judge with "the grounds” for the party’s objection.

Faced with the indistinct exception articulated in the instant case, the judge was left, as are we, to speculate as to the specific grounds of the objection and, thus, had no opportunity to correct, modify, or clarify his jury instructions, if such action was, in the judge’s view, warranted.

The best label we can place upon the appellant’s exception is that it was "a shot-gun approach,” without any specifics, and consequently insufficient to satisfy the rule.

We have repeatedly held that one of the prime purposes of Rule 757 f is to afford the trial judge an opportunity to correct any misstatement of law, clarify an ambiguity, or correct inaccuracies. See, e.g., Sine v. State, 40 Md. App. 628, 394 A.2d 1206 (1978), cert. denied, 284 Md. 748 (1979); Mason v. State, 18 Md. App. 130, 305 A.2d 492 (1973); cert. denied, 416 U.S. 907 (1974); Vernon v. State, 12 Md. App. 157, 277 A.2d 635 (1971); Parker v. State, 4 Md. App. 62, 241 A.2d 185 (1968), cert. denied, 402 U.S. 984 (1971). Our holdings follow the lead of the Court of Appeals in Bennett v. State, 230 Md. 562, 188 A.2d 142 (1963); Canter v. State, 220 Md. 615, 155 A.2d 498 (1959); and Reynolds v. State, 219 Md. 319, 149 A.2d 774 (1959). But see.Sergeant v. Pickett, 283 Md. 284, 388 A.2d 543 (1978).

Our review of the record, nevertheless, indicates that the State submitted to the judge, and he in turn advised the jury: "An individuals’ [sic] [Fjifth [A]mendment privilege does not permit a person to completely refuse to disclose on his income tax return, any information relating to his income. . . .”

We infer that is the instruction to which appellant’s counsel alluded, but we are unable to deduce with any degree of certainty his reasons for the objection. The exception is not adequately preserved for appellate review. Md. Rule 757 f.

One final comment need be made. In this Court appellant contends that Judge Williams erred in declining to instruct the jury in accordance with appellant’s ninth prayer. Nowhere in the record can we find that appellant excepted to the judge’s declination to instruct in accordance with that prayer. Absent a timely exception, there is nothing for us to review. The issue simply is not before us. See Md. Rules 757 f, 757 h, and 1085.

Judgments affirmed.

Costs to be paid by appellant.

      . Wellington J. Griffith (1956), Freedom is Not Free.

        . Laws, 1939, ch. 277, § 223.

      . Mr. Leatherwood varied his returns filed with the Comptroller of the Treasury, State of Maryland, insofar as the reasons for noncompletion of the fiscal information is concerned. On the 1977 return, he objected on "4th and 5th Amendment” grounds.
      The 1978 return expanded on the Constitutional reasons for noncompletion, asserting that he objected on "5th” as well as "1st, 4th, 7th, 8th, 9th, 10th, 13th, 14th & 16th” Amendment grounds.

        The 1979 return simply stated "Object: Self-Incrimination.” That answer was interposed to each and every question on the return except, name, address, social security number, and county of residence. Mr. Leatherwood did deign to affix his signature to the returns.

      . Although not relied upon by the appellant, Maryland Constitution, Declaration of Rights, Article 22 provides: "That no man ought to be compelled to give evidence against himself in a criminal case.” The State Constitutional provision is in pari materia with its federal counterpart, Brown v. State, 233 Md. 288, 196 A.2d 614 (1964), the Fifth Amendment. Bass v. State, 182 Md. 496, 35 A.2d 155 (1943).

      . Cummings v. State, 27 Md. App. 361, 341 A.2d 294, cert. denied, 276 Md. 740 (1975).

      . The publication was prepared by The Subcommittee on Constitutional Rights of the Committee on the Judiciary United States Senate, 94th Congress, 2d Session. (Fifth Ed. October, 1976).

      . We infer from the record that Leatherwood’s federal returns contain a similar lack of information. He said, "Evidently, the federal government doesn’t mind, because they haven’t charged me with filing an illegally — a return yet.”

      . Subsequently, the court modified its charges and instructed the jury that it could not find the appellant guilty of more than one count in each information; that is, if guilty of count 3, he could not be found guilty of count 4 and vice versa.

      st Defendant’s requested instruction No. 10 dealt with a good faith reliance on a prior Supreme Court decision.

      10. Defendant’s requested instruction No. 11 asked that the court instruct the jury that if the tax return form called for answers that were privileged, the defendant could raise the objection on the return, etc.

      11. This instruction requested by the defendant would have had the court instruct the jury that if they believed the reasons given by the defendant for refusing to answer the questions on the Maryland Income Tax Form were made in "good faith,” they should consider "whether or not his refusal to answer the questions [on the form] was willful.”

      12. Defendant’s requested No. 13 instruction concerned the meaning of "willfullness.”

      13. Defendant’s requested instruction No. 14 would have had the judge tell the jury that they could draw no inference of guilt because of the fact that Leatherwood asserted his Fifth Amendment rights on the tax return.

      14. Defendant’s instruction No. 15 was to the effect that the Federal Constitution is the supreme law of the land.

      15. Defendant’s requested instruction No. 16 is a rehash of the requested instruction No. 13 phrased differently.

      . The Court of Appeals there reversed and remanded No. 452 (Md. App., filed December 27,1977). The case was subsequently before the Court of Appeals, 285 Md. 186, 401 A.2d 651 (1979), rev’g and remanding No. 452 (Md. App., filed November 8, 1978), and was again before this Court, sub nom, Sergeant Co. v. Clifton Building Corp., 47 Md. App. 307, 423 A.2d 257 (1980), after a second trial.