author: Moylan, J.,

text:
    RICHARD W. FELDMAN v. MAGNETIX CORPORATION, etc.
    [No. 399,
    September Term, 1981.]

      Decided December 7, 1981.

    The cause was argued before Moylan, Moore and Bishop, JJ.

      William N. Fitzpatrick, Jr., with whom was Benjamin Rosenberg on the brief, for appellant.

      Thomas K. Baxter, with whom was David J. Preller, Sr., on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

Article IV, Section 1 of the Constitution of the United States provides:

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

The ultimate issue before us on this appeal is whether Maryland shall extend full faith and credit to a judgment entered by a court in the State of Florida.

The appellant, Richard W. Feldman, is a resident of Maryland. The appellee, Magnetix Corporation, is a Florida corporation in the business of, inter alia, duplicating magnetic tapes from original tapes. Pursuant to an oral agreement between them starting in 1973, Feldman would send tapes from his place of business in Maryland to Magnetix in Florida, where the tapes would be reproduced and then returned to Feldman in Maryland. In June, 1975, Magnetix received an order from Feldman, performed the reproduction services requested, shipped the completed tapes to Feldman in Maryland and billed him for the services in the amount of $2,036.90. Feldman failed to make payment.

Magnetix brought suit against Feldman in the County Court for Orange County, Florida. It obtained service upon Feldman, in compliance with the Florida "Long Arm” Statute, by having a copy of the complaint served upon Feldman’s wife at Feldman’s residence in Maryland. Feldman failed to answer the complaint and failed to appear in Florida. On September 28, 1978, a final judgment was rendered against him by the Florida court in the amount of $2,036.90 in damages and $90.20 in court costs.

Magnetix subsequently sued Feldman in the District Court of Maryland for Baltimore County, seeking to have the Florida judgment enforced. Feldman elected a jury trial and the case was transferred to the Circuit Court for Baltimore County. Based on certified copies of the records from Florida, Magnetix moved for summary judgment. On February 6, 1981, Judge Austin W. Brizendine conducted a hearing on Magnetix’s motion for summary judgment (and a cross-motion for summary judgment by Feldman) and granted the motion on behalf of Magnetix (denying the cross-motion of Feldman).

Upon this timely appeal, Feldman raises two related issues. He claims that "there is a genuine issue of material fact respecting the Defendant’s liability. The debt sued upon was a corporate debt of Communitape Corporation, and the Defendant was not and is not personally liable for the said debt.” Our response to that claim is that, if the Florida judgment is entitled to full faith and credit in Maryland, the factual dispute as to liability, however genuine, is not material. The materiality of that dispute ended with the handing down of the judgment in Florida; under principles of res judicata, the dispute may still be very genuine but is utterly immaterial. Feldman’s oblique attempt to resuscitate materiality by relating the factual dispute to the jurisdictional issue rather than to the liability issue is foreclosed by Groom v. Margulies, 257 Md. 691, 265 A.2d 249. The well-reasoned decision of Judge Barnes dealt with a similar contention. Margulies there challenged the jurisdiction of the State of Maryland, under our "Long Arm” Statute, on the grounds that he had not done business personally in Maryland but had only acted for a corporation which did business in Maryland. The Court of Appeals pointed out that the contention went to the merits of the case and not to the question of jurisdiction. It reasoned, at 257 Md. 703-704:

"In considering problems arising under the Long Arm Statute, it is important to distinguish between the jurisdiction of the forum state over the out-of-state defendant, on the one hand, and the merits of the case, on the other. The defendant Margulies contends, in effect, that inasmuch as he was acting in Maryland as an agent for a disclosed principal, he was not transacting any business in Maryland for himself as an individual, but only for his principal and hence the lower court had no jurisdiction over him under the 'Long Arm’ Statute. We do not agree with this contention. The declaration in the present case, the itemized statement of account and the affidavit in support of Groom’s motion for summary judgment indicate on their face that the agreement was entered into in Maryland with Margulies individually even though he was trading as Marko Distributors, Inc.; that Groom dealt with Margulies 'exclusively’ and paid the $10,000.00 to him. The service by mail was sent to Margulies in New Jersey and he signed the return receipt without qualification. There is really no contention that the negotiation of the agreement and lease, the execution of these documents in Maryland and the payments in Maryland do not amount to the transaction of any business in this State. Cf. Vitro Electronics v. Milgray, 255 Md. 498, 258 A.2d 749 (1969). The contention is that the 'transaction of business’ was not for Margulies individually but for a corporation, which Margulies contends was a disclosed principal. This contention, however, in our opinion is directed at the question of ultimate liability in the case. The statute makes the test of jurisdiction in the present circumstances, the transaction of any business without any qualification. Margulies did transact business in Maryland and Maryland has personal jurisdiction over him. His defense that he is not liable because he was acting for a disclosed corporate principal goes to the merits of the case, not to the power of the court to make the adjudication.”

The mootness of any factual dispute as to the merits of liability, however, does not render immaterial a genuine dispute as to other facts bearing upon the State of Florida’s in personam jurisdiction over the appellant Feldman. As Judge Oppenheimer expertly traced for the Court of Appeals in Van Wagenberg v. Van Wagenberg, 241 Md. 154, 215 A.2d 812, a party proceeded against under an out-of-state judgment may collaterally attack the jurisdiction of the court which rendered that judgment. "[I]f there was no jurisdiction, the judgment is not entitled to faith and credit.” 241 Md. at 160. As Judge Oppenheimer pointed out at 241 Md. 161:

"If the court of the state rendering the judgment sued upon was not authorized by that state to exercise its jurisdiction in the particular matter, the purported judgment is subject to collateral attack. The power of the state (Maryland) in which the suit on the judgment of the sister state (New York) is brought, to examine into whether, under New York law, the court of that state which rendered the judgment had authority to do so, is beyond question.”

In defending against summary judgment in this case, Feldman mounted such an attack against the in personam jurisdiction of the Florida court in two regards: (1) that the exercise of jurisdiction by Florida violated Florida law and (2) that the exercise of jurisdiction by Florida violated the due process clause of the Fourteenth Amendment to the United States Constitution.

Under Maryland Rule 610d 1, summary judgment is appropriate where "the pleadings, depositions and admissions on file, together with the affidavits, if any, show there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law.” From the pleadings and the answers to interrogatories in this case, there is some genuine factual dispute between Feldman and Magnetix over the extent to which their business transactions and negotiations implicated the State of Florida. If the difference between their versions of the facts would be pivotal in determining Florida’s jurisdiction over Feldman either under the Florida statutes or under the Federal Constitution, the dispute would be material and summary judgment would be inappropriate. The normal processes of fact-finding, by judge or jury, with the opportunity to condition for trustworthiness, to probe through cross-examination, to observe witnesses’ demeanors, would then be resorted to for purposes of assessing competing credibilities, weighing contradictory evidence and resolving such genuine factual disputes on material issues.

In reviewing a summary judgment, we must consider the facts, and all legitimate inferences flowing therefrom, in the light most favorable to the party opposing the motion. Berkey v. Delia, 287 Md. 302, 413 A.2d 170; Lawless v. Merrick, 227 Md. 65, 175 A.2d 27. In this case, we shall affirm the actions of Judge Brizendine for we conclude, as a matter of law, that even the version of the facts submitted by Feldman and most favorable to him demonstrates that Florida had jurisdiction over him, both under Florida law and without violation of any due process protection.

Two of the affidavits of Feldman himself reveal that from 1971 through 1975, he was the president and principal shareholder of the Communitape Corporation. Communitape was in the business of producing audio-visual programs. During all of that period, Mr. Feldman devoted all of his professional efforts to the business of Communitape. On several occasions from 1973 through July, 1975, Communitape, through Mr. Feldman, did business with Magnetix. On each occasion, a master tape was shipped from Communitape in Maryland to Magnetix in Florida. In Florida, it was duplicated in the quantities specified by Feldman. The product would then be shipped from Florida back to Communitape in Maryland. Payment would be remitted to Magnetix in Florida.

The oral contract in issue was entered into between Feldman and a representative of Magnetix in about May, 1975, in Columbia, Maryland. Pursuant to that contract, the master tape was shipped from Maryland to Florida. Mr. Feldman acknowledged the possibility that he or his agents may have made "one or two telephone calls from Maryland to Magnetix Corporation’s Florida offices regarding this transaction.”

Feldman did not dispute the fact that normally, following delivery of an order, payment was remitted to Magnetix in Florida and that no payment was made on this final occasion.

Section 48.193 (1) (g) of the Florida Statutes Annotated (1973, Supp. 1981) provides:

"(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
(g) Breaches a contract in this state by failing to perform acts required by the contract to be performed in this state.”

We, of course, defer to the Florida case law interpreting and applying the Florida statute. Three decisions of the Florida Court of Appeals have held that the failure to make payment in Florida by a non-resident debtor is a sufficient action to represent a breach of contract in Florida "by failing to perform acts required by the contract to be performed in this state” and to bring the defaulting debtor within the coverage of Section 48.193 (1) (g). In Madax International Corporation v. Delcher Intercontinental Moving Services, Inc., 342 So.2d 1082 (Fla. App. 1977), the defendant was an Oregon corporation which did business in Europe and which sent a telex from Germany to the Florida plaintiff, a furniture moving company, requesting that the plaintiff transport furniture of one of the Oregon corporation’s employees from Florida to Belgium. The plaintiff performed the services and billed the defendant. The defendant refused to pay. The defendant was served under the Florida "Long Arm” Statute. The Florida Court of Appeals held, at 342 So.2d 1084:

"Accepting the facts stated above to be true, the parties entered into a contract which had been breached by Madax’s (Defendant) failure to perform acts required by the contract to be performed in this state, to wit: the payment for the services rendered by Delcher. Where there is an express promise to pay and no place of payment is stipulated, the debtor must seek the creditor, and the cause of action accrues where the default occurred.”

In Professional Patient Transportation, Inc. v. Fink, 365 So.2d 209 (Fla. App. 1978), the Court of Appeals reaffirmed its Madax decision and applied it in a situation where the services to be performed by the Florida plaintiff were outside the State of Florida. Payment, however, was due in Florida and payment was not made. This was held to be a sufficient breach of contract to bring the defendant within the jurisdiction of the Florida court. In First National Bank of Kissimmee v. Dunham, 342 So.2d 1021 (Fla. App. 1977), it was held that the failure on the part of a resident of Indiana to pay a promissory note to a Florida bank brought the Indiana defendant within the jurisdiction of the Florida court. Since the place of payment was not specified, the note was payable at the residence of the creditor.

We also have no difficulty in holding that Florida’s exercise of in personam jurisdiction over the appellant in this case did not deny the appellant that due process of law guaranteed him by the Federal Fourteenth Amendment. The modern Constitutional law with respect to the due process implications of a state court’s rendering a judgment against an absent defendant is well-stated by International Shoe Company v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945):

"... due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.’ ”

More recently, McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), discussed the long-range trend and evolving state of the law in this regard, saying at 355 U.S. 222-223:

"Looking back over this long history of litigation a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents. In part this is attributable to the fundamental transformation of our national economy over the years. Today many commercial transactions touch two or more States and may involve parties separated by the full continent. With this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines. At the same time modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity.”

In the McGee case, a resident of California entered into an insurance contract by mail with an insurance company in Texas. Premium payments were regularly made by mail from California to Texas. Payment was ultimately due to a California beneficiary in California and the Texas-based company refused to make payment. In upholding California’s exercise of in personam jurisdiction over the defendant, the Supreme Court reasoned, at 355 U.S. 223:

"It cannot be denied that California has a manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims. These residents would be at a severe disadvantage if they were forced to follow the insurance company to a distant State in order to hold it legally accountable. When claims were small or moderate individual claimants frequently could not afford the cost of bringing an action in a foreign forum — thus in effect making the company judgment proof.”

We find the McGee case far more apposite to the issue at hand than the case of Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). In that case, the Supreme Court held that there was a fatal deficiency of those "minimal contacts” necessary to sustain the exercise of in personam jurisdiction over a non-resident. Florida was the forum state. The trust was created in the State of Delaware by a resident of Pennsylvania. The trust had no connection with Florida and nothing under the trust was ever done in Florida. The only connection Florida had with the trust was that the settlor, years later, moved to Florida. This failed to satisfy the "minimal contacts” standard. We find this inapposite to the present situation where the appellant shipped a product to Florida, the duplication process was carried out in Florida and payment for the services was due in Florida. Nor is the situation now before us remotely analogous to that before the Supreme Court of the United States in World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). In that case, the Supreme Court held that the forum state, Oklahoma, lacked the necessary "minimal contacts” to extend in personam jurisdiction over a New York-based automobile dealership, where an automobile was sold in New York to New York residents and the automobile was later simply being driven through Oklahoma when the accident occurred that gave rise to the products liability suit. See also Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); Kulko v. California Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978); Rush v. Savchuk, 444 U.S. 320, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980); Annotation, Comment Note "Minimum Contacts” Requirement of Fourteenth Amendment’s Due Process Clause (Rule of International Shoe Co. v. Washington) for State Court’s Assertion of Jurisdiction Over Nonresident Defendant, 62 L.Ed.2d 853 (1980); and see generally Hazard, A General Theory of State-Court Jurisdiction, 1965 Sup.Ct. Rev. 241. Judge Thompson has well analyzed this body of law for this Court in McKown v. Criser’s Sales & Service, 48 Md. App. 739.

We hold, as a matter of law, that Florida’s exercise of in personam jurisdiction over the appellant was proper both under Florida law and under the Federal Constitution. Judge Brizendine was, therefore, correct in concluding that there was no genuine dispute as to any material fact so as to forestall the granting of summary judgment in this case.

Judgment affirmed; costs to be paid by appellant.

      . The appellant does not challenge the method of service. Indeed, Sections 48.031 and 48.194 of the Florida Statutes Annotated (1973, Supp. 1981), authorize such service on a family member.

      . Let it be carefully noted, however, that the rule of law expressed by Groom v. Margulies, and fully applicable to the situation at bar, should not be read overbroadly to subject any agent of any corporation under any circumstances to the jurisdiction of the forum state simply because the corporation itself is so subject. The rule of law expressed in Groom v. Margulies covers the situation such as the one before us wherein the individual and the corporation are, in effect, alter egos. In this case, Feldman was from the moment of the corporation’s birth its president and principal shareholder. He devoted all of his professional effort to the business of the corporation. All of the contacts which the corporation had with Magnetix in Florida were contacts made by Feldman in person. Nothing in Groom v. Margulies and nothing in this present holding, therefore, intimate anything with respect to a forum state’s "Long Arm” in personam jurisdiction over an individual who is, as an agent, just one small cog in the machinery under a large and multi-faceted corporate entity. For such a situation, see Quinn v. Bowmar Publishing Co., 445 F.Supp. 780, 786 (D. Md. 1978). Compare Holfield v. Power Chemical Co., Inc., 382 F.Supp. 388 (D. Md. 1974). See also generally 4 Wright and Miller, Federal Practice and Procedure, § 1069 (1980 Supp. at 46).


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    CARROLL PARK MANOR COMMUNITY ASSOCIATION, INC. et al. v. BOARD OF COUNTY COMMISSIONERS OF FREDERICK COUNTY, MARYLAND et al.
    [No. 402,
    September Term, 1981.]

      Decided December 7, 1981.

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

      David D. Freishtat, with whom were Shulman, Rogers, Gandal, Tobin & Ecker, P.A. on the brief, for appellants.

      Lawrence E. Speelman, County Attorney for Frederick County, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

Four individual citizens and taxpayers of Frederick County and an incorporated association of homeowners in the vicinity of property known as the Montevue Tract in that County have appealed from an order holding that they had no standing to obtain a declaratory judgment and injunction in the Circuit Court for Frederick County that would have restricted the use of that tract "for the benefit of the Poor of said County and to and for no other use, intent or purpose, whatsoever.” The property in question was obtained by the County in 1828 by a deed reciting the limiting language above quoted. The Bill of Complaint, filed against the County Commissioners and the Attorney General of Maryland, claims that the present and prospective uses of the Montevue Tract violate the terms of the deed, which appellants contend created a charitable trust.

The appellees raised the question of standing (among others) by Motion Raising Preliminary Objection. Because appellants had averred that the property was held as a charitable trust, appellees argued that no such trust existed, but even if it did, that appellants did not fall, within the "person interested” description in Md. Cts. & Jud. Proc. Code Ann. (1974, 1980 Repl. Vol.), § 3-408, setting forth those persons who may have a declaration of rights or legal relations in respect to a trust.

The chancellor assumed for the purposes of the Motion that the deed had created a charitable trust and, thus assuming; held that appellants did not have standing to sue:

"It is the settled general rule that a mere member of the general public, though a taxpayer, has no standing in court to maintain a suit to enforce a charitable trust or to prevent violations of a charitable trust. 15 Am Jur.2d. Charities Sec. 142, 14 CJS, Charities Sec. 58, Anno: 62, ALR 902, 124 ALR 1242, 94 ALR 3rd 1204, Cannon v. Stephens, 18 Del. Chancery, 159A 234, Pollack v. Peterson, 271 A2d 45, Kania v. Chatham, 297 N.C. 290, 254 S.E.2d 528. See also Estates and Trusts, Annotated Code of Maryland, Sec. 14, 301. The Court has not been directed to any case in Maryland in which persons were held to have standing to enforce a charitable trust simply because they were taxpayers, nor has the Court found any such cases in its own research. Plaintiffs have not shown that they are persons interested in the enforcement of the trust created by the deed to the Montevue Tract, even if such a trust was created by it, apart from being taxpayers of Frederick County. See citations, supra. See also Sec. 3-408, Courts & Judicial Proceedings Article, Annotated Code of Maryland, and Sec. 14-301 of the Estates and Trusts Article, Annotated Code of Maryland. See also the definition of an "interested person” in Sec. 1-101 of the Estates and Trust Article, supra. Therefore, they have no standing to sue or maintain this action, citations, supra.”

It appears that the chancellor too narrowly viewed the issue before him. As we read the Bill of Complaint, appellants do not seek "to enforce a charitable trust” in the sense that it was addressed by the authorities upon which the judge relied. It appears rather that they seek, as "taxpayers and citizens of Frederick County,” to enjoin allegedly ultra vires acts by the County authorities.

"Board of County Commissioners of Frederick County have acted illegally and been arbitrary and capricious in their actions relating to the Montevue Tract to continue to use said property for the uses in violation of their trust as established in the deed of the Montevue Tract to the County in 1828.”

Whereupon, they pray specifically three types of relief from the court. First, they ask for a declaration of the rights of the parties "as well as all citizens with respect to the Montevue Tract.” Based upon the foregoing allegation that the deed had created a charitable trust, we infer that the prayer asked for just such a declaration. Secondly, they asked the court to enjoin the County Commissioners from "the development of the Montevue Tract for a Central Alarm or any other facility not consistent with the Deed.” This was the imminent concern which precipitated the action as indicated in the recitations of the Bill of Complaint:

"The Board of County Commissioners and its action on December 9, 1980 voted to designate the Montevue Tract, which is owned by Frederick County, as a site for the Central Alarm (the public facility for the receipt of all emergency phone calls) and to also retain the use of the property for the following purpose. The public works office building for Frederick County, automobile equipment and storage yard, storage facility for voting machines, state veterinarian office and incinerator for the disposal of animals. There is no present intention of the County Commissioners to cease the use of the property for these purposes.”

Thirdly, they prayed not that they be permitted to enforce the trust by preventing violations of it, but

"[t]hat the State Attorney General take such steps to continue the charitable trust and protect the Montevue Tract.”

That prayer was in accord with a previous recitation in the Bill explaining why the Attorney General had been made a party.

"Stehpen [sic] H. Sachs is the attorney general for the State'of Maryland. In that capacity he is being sued in the above-captioned matter pursuant to Section 14-302 in the Trusts and Estates Articles. The Attorney General is charged by law to oversee chartiable [sic] trusts and see that they, as nearly as possible, fulfill the general charitable intention of a settlor or testator.”

The question then is not whether appellants had standing to enforce a charitable trust but whether, as citizen-taxpayers, they might invoke the aid of an equity court to restrain the action of public officials from illegal or ultra vires acts. The enforcement of the trust was the means of restraint they ultimately sought through the Attorney General, as required by law. Parenthetically, we note that the Attorney General’s response indicated that he was not knowledgeable enough to admit or deny the allegations and agreed to be bound by whatever determination the court deemed just and proper regarding the administration of the alleged trust. His cooperative disinterest continues in his failure to participate in this appeal.

In Citizens P. & H. Ass’n v. County Exec., 273 Md. 333 (1974), the Court of Appeals — in its contemplative capacity — reviewed all of its earlier cases on taxpayer standing to sue, beginning with Baltimore v. Gill, 31 Md. 375 (1869). The Court condensed its prior holdings into concise and carefully articulated rules.

"From this decision [Baltimore v. Gill, supra] and the long line of Maryland cases following in its wake, the principle has become established that a taxpayer may invoke the aid of a court of equity to restrain the action of a public official or an administrative agency when such action is illegal or ultra vires, and may injuriously affect the taxpayer’s rights and property. [Citations omitted.] The corollary to this rule is that the taxpayer will be allowed such relief only when some special damage is alleged and proved, or a special interest is shown which is distinct from that of the general public. [Citations omitted.] This has been interpreted to require a showing that the action being challenged results in a pecuniary loss or an increase in taxes.” 273 Md. at 339.

In the case before us, the appellants have alleged that they were taxpayers and citizens invoking the aid of an equity court to avert ultra vires actions by public officials. They have not alleged, however, that which is a required showing,

"that the action being challenged results in a pecuniary loss or an increase in taxes,” id.,

to them as taxpayers.

"The Plaintiffs are taxpayers and citizens of Frederick County, all owning the property within Frederick County and paying taxes to Frederick County thereon and has [sic] standing to bring the action as taxpayers, and the decision to use the portion of the Montevue Tract for the uses sited [sic] herein would thus reduce and eliminate a portion of the County’s assets to be used for the poor.”

That which they have alleged — a reduction or elimination of assets to be used for the poor — indicates to the contrary, that the revenue not used for the poor might inure to the taxpayers’ benefit. Cf. Citizens Committee v. Co. Comm., 233 Md. 398, 404 (1964) (taxpayers had no standing to challenge local laws authorizing gambling where licensing revenue derived by county exceeded costs of administration); see Citizens P. & H. Ass’n, supra at 342. It clearly did not indicate a pecuniary loss and that is the test according to the Court of Appeals:

"The test is whether appellants reasonably may sustain a pecuniary loss or a tax increase ....” Id. at 344.

Appellants contend in their brief, however, that:

"Clearly, pecuniary damage to the taxpayers would result if it were necessary to increase taxes to purchase other sites on which to build facilities for the poor when such purchases would be unnecessary if the County used the Montevue Tract which it already owns.”

But although the possibility of such pecuniary loss is their present contention, that is not what appellants allege in their Bill of Complaint. Their allegations clearly imply a concern only that the poor will be deprived. They allege no facts indicative of the argued fears that substitute sites will be sought and purchased to the pecuniary detriment of taxpayers. If such facts were alleged showing that appellants may sustain a pecuniary loss or a tax increase, appellants’ standing would be assured and the controversy would be justiciable. See Gordon v. City of Baltimore, 258 Md. 682, 689-690 (1970).

We hasten to note, however, that organizational appellant, although not distinguished from its individual colleagues in the allegation that "plaintiffs are taxpayers and citizens”, can have no standing to sue where it has no property interest of its own, separate and distinct from that of its individual members, which may be affected by any of the alleged acts under attack. 273 Md. at 345. Unless the allegations suggest that the organizational appellant possessed such separate interests, it would have no standing despite a pecuniary loss or tax increase allegation by the individual appellants.

Had the chancellor not been misdirected by the charitable trust enforcement issue, we are certain he would have permitted an appropriate opportunity to amend, in light of the liberal amendment policy in this State. Amendments should be freely allowed to serve the ends of justice so that cases may be tried upon their merits rather than upon the niceties of pleadings. Crowe v. Houseworth, 272 Md. 485 (1974); Hall v. Barlow Corporation, 255 Md. 28, 39-40 (1969).

We will, therefore, remand the case to the Circuit Court for Frederick County in order for the chancellor to provide an adequate opportunity to amend the Bill of Complaint in accordance with our opinion, if there are facts known to appellants permitting them to so allege. If no facts are alleged within the time established by the chancellor, sufficient to show that appellants in their respective capacities "reasonably may sustain a pecuniary loss or a tax increase,” Citizens P. & H. Ass’n, supra, the Bill of Complaint should be dismissed by the chancellor.

Judgment reversed; case remanded for further proceedings not inconsistent with this opinion; costs to be paid by Frederick County.

      . Md. Est. & Trusts Code Ann. (1974) provides:
      "§ 14-301. General enforcement.
      (a) Power of court — Courts of equity have full jurisdiction to enforce trusts for charitable purposes upon suit of the state by the Attorney General or suit of any person having an interest in enforcement of the trust.
      (b) Deñnition. — 'Charitable purposes’ includes all purposes within either the spirit or letter of the statute of 43 Elizabeth ch. 4 (1601), commonly known as the statute of charitable uses.
      (c) Beneficiaries as an indeñnite class. — A charitable trust shall not be held invalid or unenforceable merely because the beneficiaries of the trust constitute an indefinite class. ...
      § 14-302. Uniform Charitable Trusts Administration Act.
      (a) General rule. — If a trust for charity is or becomes illegal, or impossible or impracticable of enforcement or if a devise or bequest for charity, at the time it was intended to become effective, is illegal, or impossible or impracticable of enforcement, and if the settlor or testator manifested a general intention to devote the property to charity, a court of equity, on application of any trustee, or any interested person, or the Attorney General of the State, may order an administration of the trust, devise or bequest as nearly as possible to fulfill the general charitable intention of the settlor or testator.
      (b) Uniformity of construction. — This section shall be interpreted and construed to effectuate its general purpose to make uniform the law of those states which enact it.
      (c) Short title. — This section may be cited as the Maryland Uniform Charitable Trusts Administration Act.”


author: Gilbert, C. J.,

text:
    SUSAN MARINE v. CURTIS JOHNSON
    [No. 418,
    September Term, 1981.]

      Decided December 7, 1981.

    The cause was argued before Gilbert, C. J., and Moore and Liss, JJ.

      O. Robert Lidums, with whom was Julius A. Jodlbauer on the brief, for appellant.

      Thomas L. Kemp, with whom were William G. Kemp and Melvin J. Sykes on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

This appeal asks whether a person who is appointed as a personal representative under a will admitted to judicial probate may then maintain an action challenging the probate. Phrased more simplistically, may the defender of the will be its principal assailant?

The facts giving rise to this question are uncomplicated. Marianne Marine died on November 2,1979. Approximately one month later, a petition for judicial probate was filed in the Orphans’ Court for Cecil County. The petition was accompanied by a photocopy of a paper writing purported to be the last will and testament of the decedent. The writing was dated July 27, 1978.

Opposition to the petition was filed by the three children of Ms. Marine. Johnson also presented a copy of a later dated paper writing that purported to be Ms. Marine’s will. That paper bore the date of June 28,1979. It was, however, admittedly invalid in that it lacked the requisite number of witnesses.

The Orphans’ Court, after a hearing, admitted the photocopy of the July 27, 1978, will to probate and rejected the June 1979 writing.

Susan Marine, one of the children of the decedent and the person nominated by the decedent to be the representative under the July 1978 will, then qualified as the personal representative.

Subsequent to her qualification, she individually appealed the Orphans’ Court’s ruling admitting the July 1978 will to probate. The appeal to the Circuit Court for Cecil County took the form of an attack on the admission to judicial probate of the photocopy of the 1978 will. The principal beneficiary under that will was named the defendant. The appellant asserted that there was no clear and convincing evidence to rebut the presumption that the July 1978 will was revoked by virtue of the absence of the original copy of the will. The circuit court, after a trial de novo, affirmed the Orphans’ Court. This appeal ensued.

Interestingly, no one raised in the trial court the issue of the right of the appellant to carry water on both shoulders, i.e., to attack the very will that she was charged with administering. On appeal, however, that issue has been raised.

Ordinarily, this Court will not consider issues not raised and decided in the trial court. Md. Rule 1085. The rule does, however, permit us to consider original issues in appropriate circumstances. Charles J. Cirelli & Sons, Inc. v. Harford County Council, 26 Md. App. 491, 338 A.2d 400 (1975).

Exercising the authority conferred upon us by Md. Rule 1085, we shall consider the question inasmuch as it is dispositive of this appeal.

Applicable provisions of Md. Estates & Trust Code Ann. provide:

"§ 6-101.
As a condition to his appointment, a personal representative shall file (a) a statement of acceptance of the duties of the office, (b) any required bond....”
"§ 6-102.
h. (1) The bond shall be substantially in the following form:
The condition of the above obligation is such, that if_shall well and truly perform the office of the personal representative of _, late of _, deceased, according to law, and shall in all respects discharge the duties required of him by law as personal representative without any injury or damage to any person interested in the faithful performance of the office, then the above obligation shall be void; it is otherwise to be in full force and effect.”
"§ 7-101.
(a) A personal representative is a fiduciary. He is under a general duty to settle and distribute the estate of the decedent in accordance with the terms of the will and the estates of decedents law as expeditiously and with as little sacrifice of value as is reasonable under the circumstances. He shall use the authority conferred upon him by the estates of decedents law, by the terms of the will, by orders in proceedings to which he is party, and by the equitable principles generally applicable to fiduciaries, fairly considering the interests of all interested persons and creditors.”

Although the appellant was appointed personal representative, she posted no bond as such, but because she appealed the decision admitting the will of June 1978 to probate, she requested to be and was appointed "special administratrix.” She posted a $5,000 bond to assure the faithful performance of those duties.

Maryland does not appear to have considered the precise question put to us, but in Langhirt v. Hicks, 153 Md. 31, 137 A. 482 (1927), the Court in dicta said that a person who attempted to caveat a will, withdrew the caveat and qualified as executor could not, after fifteen months service as executor, caveat the will. The Court opined that the executor was estopped to assert a position inconsistent with a different position he had voluntarily assumed. An executor is charged with the duty of defending a will, once it has been admitted to probate. Mead v. Tydings, 133 Md. 608, 105 A. 863 (1919); Miller v. Gehr, 91 Md. 709, 47 A. 1032 (1900); Gorton v. Perkins, 63 Md. 589, 3 A. 291 (1885).

In Stuart v. Foutz, 185 Md. 401, 45 A.2d 98 (1945), the appellant was the executrix of a will. She offered two wills for probate, one of which was admitted. The executrix appealed the denial of the other will. The Court held that she could not maintain the appeal. The Court sua sponte raised the question of appealability and then dismissed the appeal.

In the light of Langhirt and Stuart, we have no hesitancy in holding that the appellant, having been appointed to the office of personal representative of the estate of her mother, Marianne Marine, may not assail the validity of the very will she has been designated to defend. We dismiss the appeal.

We add that if this case were before us on the merits of the probate of the photocopy of the will of June 1978, we would affirm the trial court and, thus, the Orphans’ Court.

Appeal dismissed.

Costs to be paid by appellant.

      . The decedent was divorced. The children were issue of the marriage.

      . The other two children were not parties to the appeal.

      . See Md. Cts. & Jud. Proc. Code Ann. § 12-502.


author: Liss, J.,

text:
    JOSEPH LEE CANTRELL v. STATE OF MARYLAND
    [No. 431,
    September Term, 1981.]

      Decided December 8, 1981.

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

      Don F. Lindner, with whom was Joseph H. Rouse, Assigned Public Defender, on the brief, for appellant.

      Ann E. Singleton, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Warren B. Duckett, Jr., State’s Attorney for Arundel County, and David Plymyer, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

Appellant, Joseph Lee Cantrell, was tried by a jury in the Circuit Court for Anne Arundel County. The jury returned verdicts of guilty of first degree rape, second degree rape, first degree sexual offense, second degree sexual offense, perverted practice, assault and battery, and assault. Appellant was sentenced to a term of ten years for first degree rape, ten years for second degree sexual offense and five years for perverted sexual practice, all terms to run concurrently with the other offenses merging. It is from these judgments that this appeal is filed. Appellant raises two issues for determination by this appeal:

I. Did the trial judge err in not admitting certain evidence concerning the victim’s character, which included why her mother was holding such a tight rein on her, the source of the money that she had the night of the alleged incident, a T-shirt that the victim was wearing that said "I love Joe”, and a conversation that the victim had with a witness just prior to talking to the appellant wherein she said she had sold a piece of her body?

II. Did the trial judge err in allowing the State to present hearsay testimony from the victim’s mother about remarks her daughter made to her when she returned home after the alleged incident, especially when a proper foundation had not been laid for the admissibility of these remarks and even assuming a foundation had been laid, it was inadequate under the Maryland law?

I.

It should be noted that while appellant states there are two issues to be decided by this appeal, the first of the issues raised in appellant’s brief concerns four alleged errors by the trial court in its rulings on the admissibility of evidence. A detailed recital of the violent events which occurred in this case would serve no useful purpose.

Alicia, the victim, testified that in the late evening hours of July 28,1980, she was met outside her home by the appellant and his friend named Wilkins; that she entered Wilkins’ car and accompanied him and the appellant to an area in Anne Arundel County known as the Clay banks; that a handcuff was placed on her wrist; that she was then compelled to engage in vaginal, oral, and anal sex with both Wilkins and the appellant. The defense by the appellant was that Alicia consented to the sexual encounters which occurred.

In an effort to support the appellant’s position as to consent, he was permitted on the cross-examination of Alicia to elicit the information that there had been a lengthy relationship between the appellant and the alleged victim, which included considerable sexual activity. She was also cross-examined as to the sources of large amounts of money which she had on her from time to time and stated that some of the money was earned from her employment at Fort Meade Motors and the remainder was given to her by her parents. There then ensued a number of efforts in cross-examination to establish that Alicia was a person of loose morals who was being kept under a tight rein by her mother. The appellant complains that the trial court erred in four instances in its rulings on objections to the admissibility of this evidence.

Initially, appellant contends that the trial court committed reversible error when it refused to admit evidence concerning the victim’s character; i.e., chastity. Maryland Code (1957, 1976 Repl. Vol., 1981 Cum. Supp.), Art. 27, § 461A, known as the Rape Shield Law, provides as follows:

(a) Evidence relating to victim’s chastity. Evidence relating to a victim’s reputation for chastity and opinion evidence relating to a victim’s chastity are not admissible in any prosecution for commission of a rape or sexual offense in the fírst or second degree. Evidence of specific instances of the victim’s prior sexual conduct may be admitted only if the judge finds the evidence is relevant and is material to a fact in issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value, and if the evidence is:
(1) Evidence of the victim’s past sexual conduct with the defendant; or
(2) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or trauma; or
(3) Evidence which supports a claim that the victim has an ulterior motive in accusing the defendant of the crime; or
(4) Evidence offered for the purpose of impeachment when the prosecutor puts the victim’s prior sexual conduct in issue.
(b) In camera hearing. — Any evidence described in subsection (a) of this section, may not be referred to in any statements to a jury nor introduced at trial without the court holding a prior in camera hearing to determine the admissibility of the evidence. If new information is discovered during the course of the trial that may make the evidence described in subsection (a) admissible, the court may order an in camera hearing to determine the admissibility of the proposed evidence under subsection (a). [Emphasis supplied.]

See Lucado v. State, 40 Md. App. 25, 389 A.2d 398 (1978).

It is clear that under this section evidence relating to a victim’s reputation for chastity is no longer admissible in any prosecution for the commission of a rape or sexual offense in the first or second degree. Where the defense seeks to offer into evidence specific instances of the victim’s prior sexual conduct we conclude that there is a responsibility on the defense to raise the issue, either by way of a written pretrial motion or by way of a proffer at the time of trial. Appellant suggests that the trial judge sua sponte is required to hold an in camera hearing in order to determine whether such evidence is admissible. We perceive no such obligation imposed on the trial judge by the provisions of Section 461A.

Appellant, in the presentation of his defense, made no motion or proffer as to the admissibility of the evidence of the prior sexual conduct of the victim. In direct contravention of Art. 27, § 461A (b), defense counsel, in his opening statement to the jury, told them that "Alicia was into — kinky type sex with Joe Cantrell and others.”

It seems clear to us that the defense was predicated upon attempting to establish consensual activity between the parties, and in order to substantiate this, defense counsel sought by indirection to raise the issue of the victim’s chastity and prior sexual conduct. In an effort to shatter the victim’s credibility, appellant, in a blatant disregard of Section 461A, sought to establish by the testimony of a relative that Alicia had told him that she "sold a piece of her body on the day of the crime for $50.” If this testimony was directed toward establishing that Alicia was a prostitute, it had little, if any, probative value on the issue of the victim’s consent. Appellant ingeniously urges that even if the testimony is not admissible as affecting the victim’s credibility, it should have been admitted as an explanation of the fact that the victim, upon examination, was found to have semen in her vagina, mouth and anus. We do not agree. While the appellant admitted only having vaginal intercourse with the victim, the victim testified that both he and Wilkins had engaged in sexual intercourse with her vaginally and anally, as well as orally. Under these circumstances, the vague statement that she had sold her body that day for $50 had no probative value whatsoever, and after having carefully reviewed the record in this case, we find no error in the rulings of the trial court as to the admissibility of the evidence.

II.

Appellant finally urges that the trial court erred when it admitted into evidence testimony by the victim’s mother concerning her daughter’s complaint to her that she had been raped. The statement was made several hours after the commission of the crime. The testimony revealed that upon the completion of the sexual encounter between the appellant, the victim and Wilkins, it was discovered Wilkins’ car would not start. Appellant and Wilkins sought a "hot shot” from a man who was in the vicinity. The man originally agreed to help but when he tried to reach Wilkins’ car the man decided to turn back because of the rough road. Wilkins and the appellant stole a battery from another car, installed it into their own car, and drove Alicia back to her mother’s house. Wilkins told Alicia he needed money for gas and she told him she had some in the house under the couch. The appellant came into her house with her, where Alicia pretended to look under the couch for the money. Alicia claimed that she was stalling and making noise in an attempt to wake up her mother. Alicia then went into the bathroom and shut the door. She heard her mother wake up and order the appellant to leave the house. After the appellant left, Alicia came out of the bathroom. Her mother asked her what had happened and Alicia told her mother that she had been raped. Alicia’s mother, over defense counsel’s objection, was then permitted to testify concerning what her daughter had told her. She testified that when Alicia came out of the bathroom she was crying and her hands were shaking; that her eyes were red and glassy; that there was a bruise under her left eye and other bruises on her face which had not been there when she had left the house, and that there was a handcuff hanging from her wrist. She was also permitted to testify that Alicia had told her that appellant and another young man had been waiting for her outside her house, that they had grabbed her, put handcuffs on her wrist and had taken her down to the Severn River where they had abused her sexually in the mouth, vagina and rectum. Appellant argues that the trial court erred in admitting Alicia’s mother’s testimony regarding her daughter’s complaint of rape as it was not part of the res gestae because of the time which elapsed between the alleged acts and the conversation of Alicia with her mother. Appellant further suggests that the trial judge erred in admitting this testimony because the record indicates that the daughter’s statement was not "volunteered” but was made in response to her mother’s inquiry as to what happened. We do not agree with either of these contentions of the appellant.

Appellant relies primarily upon Smith v. State, 6 Md. App. 581, 252 A.2d 277 (1968) in support of his position. Under the circumstances surrounding this case, Smith is a slender reed upon which to rely. In Smith, this Court rejected a contention similar to that made by appellant in that case, holding that a complaint by a rape victim is admissible as original evidence to support the testimony of the victim as to time, place, crime and names of the wrongdoers. Smith v. State, supra, at 586. See also Shoemaker v. State, 228 Md. 462, 180 A.2d 682 (1962); Green v. State, 161 Md. 75, 155 A. 164 (1931). We said further in Smith, supra, at 586-7, "that in a proper case the victim’s complaint can also be a part of the res gestae and, of course, therefore admissible whether or not the victim testifies.” It is to be noted that in this case the victim did testify to substantially the same information included in the statement made in answer to her mother’s query as to what had happened.

Contrary to appellant’s contention "[t]he time element alone is not the controlling factor.” Smith, supra, at 587. We held such statements were admissible in situations where the victim "took advantage of the first opportunity to speak alone with the person to whom such a complaint would have been most likely made.” Id. at 586.

The Court of Appeals, in Green v. State, supra, held that evidence of the victim’s complaint made while the alleged injury was recent was admissible in evidence:

[T]he better rule, and the one more in conformity with our practice and decisions, is that, if the prosecutrix has testified to a violent assault, the fact of the making of complaint within a reasonable time under the circumstances is original evidence, and may be shown to prevent the inference that the woman did in fact maintain a silence inconsistent with her narrative at the trial; and if her testimony of the commission of the alleged crime be impeached by witnesses or by a cross-examination based on the defense that she consented or that her evidence is false, the terms and details of the complaint are admissible, preferably in rebuttal (a), as corroborative evidence, if made recently (b) after the commission of the alleged crime. [161 Md. at 82],

We find no error by the trial court in permitting the mother to testify regarding her daughter’s complaint of rape to her. What weight, if any, was to be given to this testimony was a question of credibility to be determined by the trier of fact. After a careful review of the record, we find no merit in appellant’s suggestion that no proper foundation was laid for the mother’s testimony. Under the circumstances, we find no abuse of discretion by the trial court in permitting Alicia’s mother to testify.

Judgments affirmed; costs to be paid by appellant.

      . Prior to the passage of this Act, the law in Maryland was that evidence of a rape victim’s reputation for chastity was admissible in evidence, but that evidence of specific acts of sexual conduct with persons other than the defendant were not admissible. Giles v. State, 229 Md. 370, 183 A.2d 359 (1962) , appeal dismissed, 372 U.S. 767, 83 S.Ct. 1102, 10 L.Ed.2d 137 (1963) .

      . This motion is not included among the mandatory pretrial motions enumerated in Maryland Rule 736.


author: Liss J.,

text:
    HARLEY-DAVIDSON MOTOR COMPANY, INC. et al. v. MICHAEL S. WISNIEWSKI
    [No. 440,
    September Term, 1981.]

      Decided December 8, 1981.

      The cause was argued before Gilbert, C. J., and Moore and Liss, JJ.

      Deborah E. Jennings, with whom were Edward S. Digges, Jr., John S. Johnson and Piper & Marbury on the brief, for appellant Harley-Davidson Motor Company, Inc. Phillips L. Goldsborough, III, with whom were John J. Boyd, Jr., and Smith, Somerville & Case on the brief, for appellant William R. Garrett t/a Garrett’s Harley-Davidson.

      Patrick A. O’Doherty and James R. White, with whom was Michael P. May on the brief, for appellee.
   Liss J.,

delivered the opinion of the Court.

In April of 1978, Michael S. Wisniewski, appellee, purchased a new Harley-Davidson Low Rider motorcycle from Garrett’s Harley-Davidson. William R. Garrett, one of the appellants herein, is the owner and operator of Garrett’s Harley-Davidson dealership located in Darlington, Maryland. Harley-Davidson Motor Co., Inc. (hereinafter Harley-Davidson), is the other appellant herein.

On July 27, 1979, the appellee filed a five count declaration in the Superior Court of Baltimore City, seeking both compensatory and punitive damages, based upon theories of breach of warranty, negligence, and strict liability. The action arose out of an accident on September 16, 1978 involving the appellee while he was riding his Harley-Davidson motorcycle.

Prior to trial the court granted the motion of appellant Garrett for partial summary judgment as to the punitive damage claim against him. A cross-claim seeking indemnity, or contribution in the alternative, was asserted by appellant Garrett against appellant Harley-Davidson, and a similar cross-claim was asserted by Harley-Davidson against Garrett.

Before, during, and after the trial appellant Harley-Davidson raised the question of the legal sufficiency of appellee’s claim for punitive damages. Harley-Davidson filed a motion for summary judgment on the issue of punitive damages which was denied. The case then came to trial before a jury. Harley-Davidson filed motions for directed verdicts, both at the close of the plaintiffs case and at the close of all the evidence. Both were denied. Appellants also objected to the punitive damage instructions to the jury.

At the conclusion of the plaintiffs evidence, Garrett moved for a directed verdict, arguing lack of sufficient evidence to send the case to the jury. The court denied the motions as to Counts I, III, and V, granted the motion as to Count IV, and reserved ruling as to Count II. At the conclusion of all of the evidence Garrett resubmitted his motion for a directed verdict on both the sufficiency of evidence and with respect to both cross-claims. The trial judge denied the motion as to Count II, but granted the motions on the cross-claims, ruling that if the accident resulted from a defect in the motorcycle as claimed by plaintiff, such defect was one which occurred during the manufacture of the motorcycle at the Harley-Davidson factory. The court further ruled that Garrett was entitled to indemnity from Harley-Davidson for any judgment which might be returned against Garrett.

Appellee then elected to dismiss the warranty counts and the case was submitted to the jury on Counts I and II as to both defendants. Verdicts were returned against both appellants in the amount of $544,604 for compensatory damages and a verdict was returned for punitive damages in the amount of $1,900,000 against appellant Harley-Davidson only. Harley-Davidson then moved for judgments N.O.V., new trial, or remittiturs and the motion was denied. In accordance with its rulings on the motions for directed verdicts on the cross-claims, the trial court thereafter entered judgment in favor of Garrett against Harley-Davidson for indemnity for the full amount of Garrett’s liability to plaintiff, and entered judgment in favor of Garrett as cross-defendant with respect to the cross-claim of Harley-Davidson against him. Both appellants then noted this appeal. Harley-Davidson raises the following two issues to be determined by this Court:

I. Whether the trial court erred in denying appellant’s motion for a directed verdict on the issue of punitive damages?

II. Whether the trial court should have granted a new trial on the issue of compensatory damages because of the claimed prejudice by the allegedly erroneous submission of the punitive damage issue to the jury?

The question presented by appellant Garrett is as follows:

In the event of a reversal of the judgment for compensatory damages against appellant, Harley-Davidson Motor Company, Inc., must there also be a reversal of the judgment against appellant, William R. Garrett, where the sole basis of the imposition of liability against Garrett was proof of a defect in the motorcycle existing when the motorcycle left the hands of the manufacturer, Harley-Davidson, and the defect was not created by any active negligence on the part of Garrett?

Garrett’s appeal is protective in nature.

Michael S. Wisniewski, plaintiff below and appellee herein, purchased a new Harley-Davidson motorcycle from Garrett’s Harley-Davidson in April of 1978. On September 16, 1978, appellee was riding his motorcycle at approximately 25 m.p.h. on an "S” shaped curve along Key Highway in South Baltimore when the throttle slipped off the handlebar. He lost control of the bike, crossed into the lanes of on-coming traffic and collided with a car traveling in the opposite lane at approximately the same speed.

Appellee’s principal injuries consisted of leg fractures of the right tibia and left femur. He required hospitalization for slightly less than two months and his total expenses for medical care and hospitalization were $14,786.20. In addition, he lost $11,152 in income. Repairs to his motorcycle cost $2,964.09. The stipulated total of medical bills, lost income and property damage was $28,902.29.

The throttle control mechanism of the motorcycle was the type which operates the throttle by rotating the right handgrip on the handlebar. As the handgrip is rotated, a cable (throttle cable) connected to the handgrip and to the carburetor is retracted or extended, causing the motorcycle to accelerate or decelerate. The handgrip is affixed to the handlebar by an aluminum alloy clamp (throttle clamp) which by design permits the handgrip to rotate but holds it on the handlebar. The clamp is comprised of two hemicircular halves, each basically shaped like the letter "C”, which are placed at the top and bottom of the handlebar (vertically opposed). When the clamp halves are thus placed, there is a slight horizontal gap between the ends of the two clamp halves, because the outside diameter of the handlebar is slightly larger than the inside diameter between the two hemicircular halves would be if the two clamp halves were drawn snugly together without being placed on the handlebar. A vertical hole is drilled through each end of the hemicircular clamp halves and the clamp is drawn together by a machine screw (clamp screw) on each side and compresses upon the handlebar, thus holding the throttle control mechanism on the handlebar. Only the bottom clamp half is threaded to receive the clamp screws; the hole in the top clamp half is drilled out to a larger .size so that each screw passes freely through the hole on each side and the head of each clamp screw draws the clamp halves together as the clamp screws engage the threads of the lower clamp half and are tightened. The alleged defect in this case was stated as an improper assembly of the throttle control clamp causing a clamp screw to suddenly fracture. This, it is contended, permitted the throttle control mechanism to come off the handlebar while the appellee was operating his motorcycle.

The evidence adduced at trial established, through the testimony of metallurgists Dr. Carl A. Zappfe and Dr. Robert Pond, that at some time a clamp screw had been cross-threaded, i.e., introduced into the threaded hole in the lower clamp half out of synchronization with the existing threads in the forward hole (towards the front of the motorcycle) of the throttle clamp. This clamp screw had been driven into the threaded hole all the way to the bottom in a cross-threaded position. Following the accident, the head of the clamp screw was missing. The evidence also established that the clamp screw which was in the forward hole of the throttle clamp on the day of the accident was cross-threaded but not driven all the way to the bottom. Both experts agreed that the cross-threading caused the clamp screw to bind in the clamp, and that continuing to drive the screw downward while cross-threaded caused the screw to fracture.

The evidence was in dispute as to the characteristics of the fracture of the screw and the time when the fracture occurred. Dr. Pond, called by appellant Harley-Davidson, testified that the fracture of the screw occurred all at once and that the presence of dirt and corrosion indicated that the motorcycle had been operated for some time with the head of the forward clamp screw broken off and with the screw on the rear side of the clamp thereafter tightened severely to hold the clamp on and to compensate for the lack of clamp tension resulting from the breaking off of the screw on the forward side.

The appellee called as an adverse witness one Mr. Meinert, who identified himself as Harley-Davidson’s assembly expert and corporate representative. He gave a description of the manner of assembly and installation of the throttle control mechanism, which were required in order to maintain the throttle in place on the handlebars of the motorcycle. Meinert admitted that the method of installation and assembly was less than perfect but insisted that it did not create a dangerous condition.

Dr. Pond, called as an expert witness by Harley-Davidson, agreed that the method of assembly would create an increased probability of the forward clamp screw becoming misthreaded. Both Pond and appellee’s expert, Dr. Zappfe, expressed the opinion that the cross-threading of the clamp screw probably occurred during the original assembly at the Harley-Davidson factory. Dr. Zappfe testified that the fracture of the clamp screw occurred in stages, the last stage occurring immediately preceding the accident. He opined that the presence of corrosion indicated a prior internal fracture which compromised the structural integrity of the clamp screw and set up the final fracture.

In our consideration of the issues raised by the appellants in this case, we note initially that appellants do not challenge the jury’s specific finding of negligence on the part of the appellants. The question then remains whether there was sufficient evidence to require the trial judge to submit to the jury the question of the assessment of punitive damages against the appellant.

Maryland has adhered to the principle that a manufacturer is required to compensate a consumer for all injuries proximately caused by products either defectively designed or manufactured. Lahocki v. Contee Sand and Gravel Co., Inc., 41 Md. App. 579, 398 A.2d 490 (1979); rev’d on other grounds, 286 Md. 714, 410 A.2d 1039 (1980); Phipps v. General Motors Corp., 278 Md. 337, 363 A.2d 955 (1976); see Maryland Code (1975) of the Commercial Law Article §§ 2-313 through 2-318.

This Court, in American Laundry Machine Industries v. Horan, 45 Md. App. 97, 412 A.2d 407 (1980) (a case of first impression as to the award of punitive damages in product liability cases), stated the rule in Maryland to be that punitive damages may be recovered in tort actions only if malice is shown. The type or degree of malice required to be demonstrated depends upon the nature of the tort. Judge Wilner, speaking for this Court, said: "Where the tort arises from neither a contractual relationship nor the operation of a motor vehicle, the malice necessary to warrant punitive damages has been defined as 'conduct of an extraordinary nature characterized by a wanton and reckless disregard for the rights of others.’ ” American Laundry Machine Industries v. Horan, supra, at 112. See also Wedeman v. City Chevrolet Co., 278 Md. 542, 366 A.2d 7 (1976); St. Paul at Chase Corp. v. Manufacturers Life Insur. Co., 262 Md. 192, 278 A.2d 12 (1971), cert. denied, 404 U.S. 857, 92 S.Ct. 104, 30 L.Ed.2d 98 (1972). The standard as enunciated in product liability cases requires "direct evidence of substantial knowledge on the part of the manufacturer that the product is, or is likely to become, dangerous, and a gross indifference to the danger.” American Laundry Machine Industries v. Horan, supra, at 117.

We have carefully considered the voluminous record extract filed in this case and we find no evidence that Harley-Davidson was aware of the cross-threaded throttle clamps. Nor does the evidence reveal the existence of a design defect which would inherently present the probability of recurrence of the danger to the consumer. There was more than sufficient evidence to establish negligence on the part of Harley-Davidson. It was obvious from the testimony that the appellant had used less than an ideal assembly process which involved the complete tightening of each of the throttle screws separately, rather than alternating each to the desired level of torque. There was, however, no evidence to establish the manufacturer’s substantial knowledge of the existence of the danger to the plaintiff. See D. G. Owen, Punitive Damages in Products Liability Litigation, 74 Mich. L. Rev. 1256,1343 (1976). The standard which will sustain an award of punitive damages in a product liability case has been stated by Professor Owen in the following fashion: In order to find "recklessness” in such circumstances there must be a readily perceptible danger and a conscious choice by the manufacturer to market the product despite the risk. See Thomas v. Cytoscope, 414 F. Supp. 255 (E.D. Pa. 1976). We find nothing in the record to substantiate knowledge of the existence of the danger by the manufacturer or gross indifference to its existence. Under all the circumstances, we conclude that the trial court erred when it denied Harley-Davidson’s motions for directed verdict on the issue of punitive damages.

First, the manufacturers must be either aware of or culpably indifferent to an unnecessary risk of injury. Second, knowing that its product is or might be excessively dangerous, the manufacturer must intransigently refuse either to determine the seriousness of the danger or to reduce it to an acceptable level. Owen at 1362.

Appellant finally urges that it is entitled to a new trial on the issue of compensatory damages because it was substantially prejudiced by the trial court’s erroneous submission of the punitive damage issue to the jury. It points out that Maryland has never had occasion to evaluate the prejudicial impact on compensatory damages of an erroneous denial of a motion for directed verdict on a claim for punitive damages. This Court, however, has held that evidence of a defendant’s wealth is probative and admissible only where a prima facie case for punitive damages has been established. See Derby v. Jenkins, 32 Md. App. 386, 363 A.2d 967, cert. denied, 278 Md. 720 (1976). Appellant suggests that the evidence of wealth of the defendant and the impassioned plea by plaintiffs counsel for punishment of Harley-Davidson created an obvious potential for prejudice and resulted in an improper verdict for compensatory damages. It suggests the only cure for this prejudicial potential is, in effect, the adoption of a per se rule that where such error occurs, a new trial as to compensatory damages must be allowed. We do not agree that such a rigid rule is mandated. We prefer to examine the evidence, on a case-by-case basis, and to determine whether a new trial on the issue of compensatory damages is required where a case has been erroneously submitted to the jury on the issue of punitive damages.

Our examination of the evidence in this case convinces us that there is no proof that the verdict for compensatory damages in this case was based on prejudice or bias. The appellee, a comparatively young man, sustained serious injuries to both legs which resulted in the permanent shortening of one of his limbs. The plaintiff, without objection, submitted to the jury a per diem calculation of what plaintiff considered an appropriate award for pain and suffering of $465,702. See Eastern Shore Public Service Co. v. Corbett, 227 Md. 411, 177 A.2d 701 (1962). The plaintiff requested $615,000 as compensatory damages. The trial judge specifically instructed the jury not to consider the defendant’s financial circumstances in reaching its decision of an appropriate award for compensatory damages. The only response of Harley-Davidson to plaintiff’s request for assessment of compensatory damages was an assertion that the jury did not necessarily have to accept the figures of the plaintiff but could put in their own, and a disclosure to the jury that the plaintiff’s top pretrial demand was for the sum of $250,000. In the light of all these circumstances we do not find that the jury’s award of compensatory damages in the amount of $544,604 was influenced by a desire to punish the appellant, particularly since the jury returned a verdict against the defendant in the amount of $1,900,000 as punitive damages.

Judgment for punitive damages vacated, judgment for corn-compensatory damages affirmed, costs to be divided equally between the parties.

      . The five counts alleged: strict liability (Count I); negligence (Count II); implied warranty of merchantability (Count III); breach of express warranty (Count IV); and breach of implied warranty for fitness (Count V).


text:
    JEROME LEROY FLETCHER v. STATE OF MARYLAND
    [No. 447,
    September Term, 1981.]

      Decided December 8, 1981.

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

      Michael R. Malloy, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Joan Lieberman, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Upon conviction by a jury in the Circuit Court for Prince George’s County of felony and misdemeanor theft, appellant was sentenced to ten years imprisonment. The items taken were a car door, a gas tank and a 1961 Volkswagen automobile.

The owner of the stolen items testified that he had kept four cars behind an abandoned house on an acre of posted land owned by him. While routinely checking the property he came upon a pickup truck with one of his gas tanks in it, parked near his Volkswagen, which had been pulled a few feet by a chain still attached. The pickup truck was occupied by one Richard James and the infant daughter of appellant.

When accosted, James claimed that he had been hired by appellant to move the vehicle and soon after produced appellant, whose automobile contained a door missing from one of the other seemingly abandoned vehicles. Although the owner testified that he had given no one permission to asport his vehicles or parts thereof, James claimed that appellant and another man had offered him fifty dollars to move the Volkswagen (and some other articles which appellant said had been given him) to a junk yard.

Replying to an attack on his reason for testifying against his friend, James testified under cross-examination that he had been charged in the case, denied having made any deal with the State, and had been tried. He was asked if he had been promised a "lesser sentence” to testify against appellant. His reply was not responsive.

"I had no defense. The only defense I had was to tell the Court exactly what happened.”

He was again asked whether the State had agreed "to offer you any”, presumably meaning leniency. He responded:

"Didn’t promise me nothing.”

Counsel pressed on, obviously inquiring whether his sentence was pending, from which he might expect the leniency he had not been overtly promised.

"Q Did you get a sentence?
MISS LIEBERMAN [prosecutor]: Objection.
THE COURT: Objection sustained.
THE WITNESS: Answer the question?
THE COURT: No.
BY MR. PARKER [defense counsel]:
Q When did you go to trial on this?
MISS LIEBERMAN: Objection.
THE COURT: Sustained.”

In light of his conviction, and urged on by his own ten year sentence, appellant complains to us that he was denied the right to show bias arising from the witness’ possible desire to shift the blame from himself and to obtain sentencing leniency by testifying to aid the State’s case against appellant. He relies primarily upon Davis v. Alaska, 415 U.S. 308 (1974). Equating James’ testimony with that of the witness under attack in Davis, it is apparent that both prosecution witnesses provided " 'a crucial link in the proof ... of petitioner’s act’”. Id. at 317, quoting Douglas v. Alabama, 380 U.S. 415, 419 (1965). It was James’ presence and his expressed reason therefor which were necessary to prove appellant’s criminal agency since it was James, not appellant, who was caught in flagrante delicto. The claim of bias which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of James’ vulnerable status pending sentence, as well as of James’ possible concern that his presentence investigation might cause him to be considered more culpable than he had asserted by his present and possibly past testimony. Id. at 317.

The State’s effort is somewhat strained in reply. By steps it tries to build a rationale for the ruling by contending that the question was technically objectionable because it "was not preceded by one asking James what the verdict had been in his case.” Therefore, says the State, the precise ruling was not technically incorrect and it did not foreclose further inquiry into the realm of bias.

Perhaps recognizing some persuasive weakness in that contention, the State quickly turns to a harmless error alternative, contending that because appellant’s subsequent testimony (as well as a prior statement he had made) was consistent with James’ narrative, the cross-examination showing bias would have been a "meaningless exercise”. The State attempted at argument to analogize the rule set forth in Peisner v. State, 236 Md. 137, 144-145 (1964), that where testimony objected to comes in later without objection from another witness, one cannot successfully claim on appeal that the original error was prejudicial. See Tichnell v. State, 287 Md. 695, 716 (1980).

The reasoning of these cases is twofold: 1) a party waives his objection to testimony by subsequently offering testimony on the same matter, Peisner, supra; and, 2) more pertinently here, when one’s own testimony confirms evidence to which he previously objected, no reversible error exists, Tichnell, supra, citing Hillard v. State, 286 Md. 145 (1979), among others. Significantly in Hillard the Court of Appeals recognized an exception to the Peisner Tichnell waiver-harmless error amalgam. If an accused’s election to testify was induced by the erroneous admission of the evidence, that he reiterates it will not cure the prior erroneous admission of evidence, Hillard, supra at 156.

Hillard recognized the vitality of the rule of Peisner and its predecessors,

"that the admission of improper evidence cannot be used as grounds for reversal where the defendant gives testimony on direct examination that establishes the same facts as those to which he objects.” Id.

The Court found it significant, however, that this rule predated an exception carried out by Harrison v. United States, 392 U.S. 219 (1968),

"that a defendant’s election to testify will not cure the prior receipt into evidence of an involuntary confession because of the possibility, absent conclusive evidence to the contrary, that his verbal reiteration of this admission at trial was induced by the receipt of his custodial statement.” 286 Md. at 156.

Although both Harrison and Hillard dealt with improperly admitted confessions, the language used by the Court of Appeals spoke more generally of evidentiary or procedural errors which would affect a defendant’s election to testify.

"Thus, the issue becomes 'not whether [Hillard] made a knowing decision to testify but why,’ Harrison v. United States, supra, 392 U.S. at 223, for as we said in Dorsey [v. State, 276 Md. 638 (1976)], supra: 'An evidentiary or procedural error in a trial is bound, in some fashion, to affect the delicately balanced, decisional process. The abnegation of a particular rule upon which the defense intended to rely may often inflict more damage than initially apparent;...’ 276 Md. at 657, 350 A.2d at 677.” Id.

Harrison, as pointed out in Hillard, was based upon the premise that if a defendant testified in order to overcome the impact of confessions illegally obtained the testimony was tainted by the same illegality as the initial statements. It was therefore not necessary for the accused to establish that the subsequent testimony was, as a matter of fact, impelled by the use of the inadmissible remarks. The government must show that its illegal action did not induce his testimony. Hillard, supra at 157; Harrison, supra at 224-225.

"Although no explicit evidence exists that the defendant Hillard was impelled to testify by the prior introduction of his written confession, neither is there any to the contrary; consequently, the admission of this 'evidentiary bombshell’ leaves no doubt in our mind that we must recognize the existence of at least a reasonable possibility that the government’s use of his written involuntary confession provoked his verbal testimony at trial and, therefore, destroys any assertion that his in court testimony rendered harmless the erroneous receipt of the earlier statement.” Hillard, supra at 158.

Hillard did not intend the Harrison exception broadly to apply in any instance of evidentiary error, so as to abrogate the Peisner principle completely, but neither did it confine the exception to erroneously admitted, involuntary confessions.

In this case, as in Hillard, without the testimony of the accomplice (James), the case would not have survived a motion for judgment of acquittal. Had James been an acknowledged perjurer, incompetent as a witness, Md. Cts. & Jud. Proc. Code Ann. (1980 Repl. Vol.) § 9-104, the error of admitting his testimony could not have been cured by appellant’s subsequent decision to take the stand despite his implicit, if not explicit, verification of James’ testimony. James’ testimony in such case would have, as a matter of law, had no weight or persuasive effect that a factfinder might consider. Suppression of a perjurer’s testimony is a statutory right; however, the right to erode inculpatory testimony by discrediting the witness’ credibility is a constitutional right intended to permit the achievement of the same result. If an accused is satisfied that he had been able to so discredit (or suppress) the one State’s witness connecting him to the crime, he need not place himself in further jeopardy by testifying to an excuse, justification or mitigating fact such as appellant did in this case. In either instance the error (if error it was) admitted or protected from attack evidence necessary for conviction, absent subsequent admissions by the accused presumably necessitated by the error. Without a showing by the State that the improper ruling did not induce the testimony we cannot say that the error committed was harmless beyond a reasonable doubt.

The brighter light of hindsight focused upon appellant’s subsequent testimony shows the incongruity in our "search for the truth” of permitting its suppression — or even its erosion — during the search. But that is the nature of the adversary system. By placing the burden of proving guilt entirely upon the State, the American judicial process recognizes the right and responsibility of defense counsel to invoke and rely upon, not only procedural roadblocks, but persuasive impediments designed to create a reasonable doubt, without otherwise responding to an accusation. Such reliance can only be assured if the rights to impede are properly permitted.

The constitutionally protected procedure of cross-examination of witnesses against an accused, as an implement to impede, is (when properly used) a crucial weapon in the arsenal of an advocate. When from hindsight it would appear that its use may have undermined the persuasive effect of testimony subsequently substantiated by an accused, we are hard pressed to say that an erroneous preclusion of his right to cross-examine was sufficiently harmful to provide him a second chance to subvert the truth. It is for that reason that we have delved into Davis, supra, and similar cases decided both before and since Davis, in greater detail than the parties provided us in their briefs to assure that there was error in the first instance. The results of that review convinced us that we must remand for retrial.

Despite appellant’s failure to establish his purpose in objecting as clearly as was done by proffer in State v. DeLawder, 28 Md. App. 212 (1975), and Deinhardt v. State, 29 Md. App. 391 (1975), cert. denied, 277 Md. 736, 741 (1976), the error here was made before appellant elected to testify and before the statement was admitted, and must be judged as to its harm potential at that time since had the appellant been able to show bias, he may have elected not to testify at all. Thus the ruling of a trial judge took on added importance. Cf. Ricketts v. State, 291 Md. 701, 703 (1981). What a jury may have thought vis-a-vis a contested pretrial statement and a possibly biased witness whose necessary testimony shifted his on-the-scene responsibility entirely to the absent appellant is something upon which we may not speculate.

Davis, before and since —

It is, of course, always permissible for an attorney to seek to elicit, through cross-examination, facts that would directly or inferentially demonstrate that a witness is biased or unworthy of belief. A trial court is under no obligation to protect a witness from being discredited, except to the extent that the witness cannot be compelled to waive privileges such as that against self-incrimination. Md. Const., Decl. of Rts., Art. 22; Franklin v. State, 239 Md. 645, 646-649 (1965), or where the witness is being subjected to interrogation intended solely to harass or humiliate him. See Alford v. United States, 282 U.S. 687, 694 (1931). Because the concept of liberality in cross-examination is so deeply embedded in the constitutional right of an accused to confront the witnesses against him, Davis v. Alaska, 415 U.S. at 315, courts ordinarily allow counsel rather wide latitude with respect to the scope of their interrogations. That rule of liberal latitude is especially applicable where such witness is a codefendant or accomplice of the accused, or is charged with or threatened with criminal prosecution, since his testimony may be influenced by a promise, hope, or expectation of immunity or leniency with respect to the case as a consideration for testifying against the defendant. Alford v. United States, 282 U.S. at 692; Annot., 62 A.L.R.2d 610, 624 (1958).

Yet faced with the realities of the criminal justice system — overcrowded dockets, multiple and often confusing jury questions, personnel shortages, and ever-increasing court costs — the need to place some restrictions on the scope of cross-examination becomes evident.

"In cases in which the alleged motive of a government witness is hope for prosecutorial leniency there will always be conflict between the need to keep the trial from being sidetracked on collateral issues and the right of the defendant to establish a witness’ bias or motive to lie.” United States v. Dorfman, 470 F.2d 246 (2d Cir. 1972), cert. dismissed, 411 U.S. 923 (1973).

It is the trial courts that have been vested with the discretion to strike the proper balance, and absent an abuse of that discretion, this Court will not reverse. Kruszewski v. Holz, 265 Md. 434, 440-441 (1972). In this case, however, the inquiry died "abornin”. The judge sustained an objection to the very first question which may have led to the revelation that the witness was testifying under the pressure of a pending sentence.

The determination of whether there has been an abuse of discretion necessarily requires consideration of the particular circumstances bearing upon each individual case. Clearly, the absolute preclusion of cross-examination pertaining to a witness’s motive for testifying would be an abuse of discretion, but beyond that we must look to such factors as the scope of interrogation permitted, how relevant the particular inquiry is to bias or motive, and whether the defendant has been prejudiced by the court’s ruling.

Courts in other jurisdictions that have dealt with similarly circumstanced cases have demonstrated some lack of agreement as to where the line should be drawn between reversible error and nonabuse of discretion. See, e.g., Annot., 62 A.L.R.2d 610, supra. For example, no error was found where defense counsel’s questions were cut off before he could inquire of the witness as to whether he had received special considerations with respect to bail and whether the government had helped him to secure employment, United States v. Mahler, 363 F.2d 673, 676-678 (2d Cir. 1966); nor was it held to be error to deny permission to inquire into the length of sentence already received by a witness as compared to that imposed on his non-testifying coconspirator. Hudson v. United States, 387 F.2d 331 (5th Cir. 1967), U.S. cert. denied, 393 U.S. 876 (1968). On the other hand, it has been held that the fact that a witness’s sentencing hearing has been postponed until after his appearance may have a bearing on credibility; and refusal to so instruct the jury is error. Farkas v. United States, 2 F.2d 644, 647 (6th Cir. 1924). Likewise, a lower court’s disallowance of questions relating to sentence has been determined to be grounds for reversal, the Sixth Circuit stating:

"[The witness’s] testimony could well have been guided by his hope of an early parole as a reward for becoming a Government witness against appellant. It is not intended remotely to convey the impression that the United States Attorney might have promised Sanzo a recommendation for parole as a consideration for his testimony. Mere hope upon the part of Sanzo that he would be so rewarded would supply sufficient motive for his testimony against Dr. Spaeth.” Spaeth v. United States, 232 F. 2d 776, 779 (6th Cir. 1956), (emphasis added).

In a recent Fourth Circuit case, the court found grounds for reversal where the trial court prohibited defendants from attacking the credibility of two important prosecution witnesses on cross-examination by showing possible bias or incentive to support the prosecution’s case. Chavis v. North Carolina, 637 F.2d 213 (1980); Accord, United States v. Crumley, 565 F.2d 945 (5th Cir. 1978).

As these cases suggest, the crux of the inquiry insofar as its relevance is concerned, is the witness’s state of mind. What is essential to the preservation of the right to cross-examine is that the interrogator be permitted to probe into whether the witness is acting under a hope or belief of leniency or reward. As the Court in Greene v. Wainwright, 634 F.2d 272 (5th Cir. 1981), stated at 276:

"What counts is whether the witness may be shading his testimony in an effort to please the prosecution. 'A desire to cooperate may be formed beneath the conscious level, in a manner not apparent even to the witness, but such a subtle desire to assist the state nevertheless may cloud perception.’ Burr v. Sullivan, 618 F.2d 583, 587 (9th Cir. 1980). See United States v. Onori, 535 F.2d 938, 945 (5th Cir. 1976).”

From this standpoint, what sentence a witness received may or may not be a relevant inquiry; under the circumstances of the case sub judice, however, we believe not only that such a line of inquiry was relevant, but that the court’s refusal to permit it constituted reversible error.

It is easy to see how the witness could have concluded logically that his failure to testify as he had promised or as was expected of him might have adverse consequences. As indicated in appellant’s brief, if given the opportunity, the jury may have believed that the witness feared that his sentence was dependent upon appellant’s conviction. It matters not whether such fear was reasonable, if he in fact believed that such was a possibility, see Farkas, 2 F.2d at 647, or more particularly, that the jury believed that to have been his state of mind. We are unable to say that a jury might not have inferred from answers to sentencing inquiries that the witness was testifying at the trial based on the hope of retaining a favorable reception from an understanding judge at subsequent sentencing (or even a favorable reconsideration if within the permissible time as determinable from an answer), and was accordingly less than truthful.

Citing Robinson v. State, 47 Md. App. 558, 572-573 (1981), the State inferentially maintains that cross-examination was not unduly restricted since the appellant could have continued questioning the witness despite the sustained objection. But appellant did attempt to do just that. After the court sustained the State’s objection to inquiry on whether the witness had been sentenced, appellant asked the witness when he had been tried for his part in the crime, and even that effort was foreclosed by a sustained objection without inquiry by the court as to the purpose sought to be elicited. This would indicate to a reticent counsel that the subject was closed. While we are of the opinion that appellant could have more thoroughly elucidated for the lower court his reasons for wanting to pursue the matter of sentencing, and even from an advocacy posture should have been more persistent in pressing the issue, it is difficult to conceive how appellant could have shown the witness’s apprehension of a hammer hanging over his head, without first establishing his proximity to that real or imagined maul. It cannot be shown that a sentencing is pending if a witness need not answer whether he has been sentenced, and if so, when. The fear of a pending sentence or reconsideration might have been a state of mind flowing from his degree of participation in the case itself, and the motivating fear could not otherwise be properly established unless the danger was shown to be apparent. Where, as here, the credibility of the witness whose testimony is sought to be undermined is so crucial to conviction, we are constrained to hold that the court’s error in curtailing cross-examination is not harmless.

In Dorsey v. State, 276 Md. 638, 659 (1976), the Court of Appeals set forth the criteria to be applied in determining whether trial error was harmless:

"We conclude that when an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed 'harmless’ and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of — whether erroneously admitted or excluded — may have contributed to the rendition of the guilty verdict.”

Applying this test to the facts in this case it is apparent that we are not persuaded by our independent review, beyond a reasonable doubt, that the restriction on cross-examination was harmless. Just as we cannot speculate upon why or how a jury arrived at a verdict, Dunn v. United States, 284 U.S. 390, 394 (1932); Ford v. State, 274 Md. 546, 550-553 (1975), neither can we speculate on what might have occurred had admissible, impugning cross-examination been received to attack the crucial witness, without whose testimony there was no case. We may even prophesy that the result would not be varied, but we cannot so state "beyond a reasonable doubt”.

— jury instructions —

Appellant also contends that he was denied the right to any final jury instructions and that the evidence was insufficient to prove that the value of the vehicle stolen was over Three Hundred Dollars. Because appellant failed to request instructions, pursuant to Md. Rule 757, or object to the failure to instruct, we will not address his former contention, Md. Rule 1085, despite his present use of the constitutional phrase "due process” in presenting it here for the first time. Vuitch v. State, 10 Md.App. 389, 397-398 (1970), cert. denied, 261 Md. 729, U.S. cert. denied, 404 U.S. 868 (1971).

— value —

Regarding his sufficiency argument we note that the victim testified — under the tutelage of the court — as follows:

"Q What was the approximate value of the vehicle?
A Well, last night I looked.
THE COURT: Just tell us.
THE WITNESS: 1961 Volkswagen in the condition that it was with a sunvisor roof, which is a more expensive model — at first I thought when I asked this question once before. I thought the value of it was $300; however, in checking out the value of this type of a car, if I had to replace it, it would cost me—
MR. PARKER: I object, Your Honor.”

Pedantically, the court admonished:

"See there, you didn’t do what I told you. You have to learn about testifying. The shortest way is the best way. Tell her in dollars.
THE WITNESS: $750.”

The Maryland Code provides that felony theft is when the property stolen has a value of Three Hundred Dollars or greater. Md. Ann. Code (1957,1976 Repl. Vol. & 1981 Supp.) Art. 27, § 342 (f) (1). Appellant mistakenly assumed that the statute required the value to be more than Three Hundred Dollars. The testimony established the necessary valuation to sustain felony theft implicitly as a market value of Three Hundred Dollars and replacement value as Seven Hundred Fifty Dollars. Either would have sufficed under Art. 27, § 340 (1). The case may be retried.

Judgment reversed.

Case remanded for retrial. Costs not reallocated.

Md. Rule 1082f.