author: Menchine, J.,

text:
    WASHINGTON SUBURBAN SANITARY COMMISSION et al. v. GRADY DEVELOPMENT CORPORATION
    [No. 1178,
    September Term, 1976.]

      Decided September 14, 1977.

      The cause was argued before Morton, Menchine and Melvin, JJ.

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

      James P. Salmon, with whom were Sasscer, Clagett, Channing & Bucher on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

A jury in the Circuit Court for Prince George’s County awarded Robert K. Boyer and Sandra L. Boyer (Boyers) damages in the sum of Fifteen Thousand Dollars against Grady Development Corporation (Grady) and Washington Suburban Sanitary Commission (WSSC). The action, grounded upon the alleged negligence of both Grady and WSSC, had been submitted to the jury as to Grady after reservation of decision upon motion for directed verdict. Maryland Rule 552 c.

The issue as to the negligence vel non of Grady came to hearing after verdict pursuant to the self-executing provisions of Maryland Rule 563 a.2. The trial court granted judgment N.O.V. as to Grady; extended judgment in favor of the Boyers against WSSC; and entered judgment in favor of Grady against WSSC in the latter’s cross-claim. The Boyers and WSSC entered appeals to this Court.

The following quotation from the brief of WSSC shows the subsequent events in the trial court that have narrowed the issues requiring our consideration:

“WSSC thereafter paid the entire judgment and obtained satisfaction from the Boyers who then dismissed their cross-appeal. At the same time, WSSC dismissed its appeal from the judgment in favor of the Boyers.
“The matter before the Court is on the propriety of the judgments entered in favor of Grady by directed verdict on the original claims (Judgment N.O.V.) and judgment by the Court on the Cross-Claim.”

Otherwise stated, liability of WSSC to the Boyers is not disputed, this appeal involving only determination of whether the evidence was legally sufficient to show (a) that Grady was jointly liable with WSSC (as the jury found) or (b) whether the evidence required indemnification of WSSC by Grady under the cross-claim.

Conceded Facts

In September 1974, the Boyers moved into a new dwelling purchased from Grady, its builder, on Branchview Drive in a development known as “Tor-Bryan Estates” in the Oxon Hill area of Prince George’s County.

On December 1, 1974, a day of very heavy rainfall, the Boyers at 8 p.m. returned to their home from a day spent with relatives. Mr. Boyer vividly described what confronted him:

“And as we entered the house — my wife, as I recall, entered ahead of me —- and as I entered the threshold of the door coming in from our garage I thought I heard a strong gushing sound.
And I said to my wife, ‘What is the smell?’
And by that time she had reached the stairway. And she screamed out, you know, ‘Bob, the basement.’
And I rushed to the head of the stairwell, and I saw down, ebbing up against the bottom step this dark, muddy, smelly water.... It apparently knocked off the tank on top of the toilet. I tried to, you know, pull the toilet lid down, and it kept knocking it back up in my face. ... I don’t know how long it had been going on when we got there, but it had already inundated one, two, three rooms at that end of the house, and was going down towards the main hall, in through the main hall into the recreation room, into the laundry room area, but it did continue for about three hours.”

Damage to the dwelling and its contents was extensive.

At about midnight on the day of the incident, employees of WSSC undertook an investigation of the reason for the sewer back-up. After opening a manhole “at the bottom of the hill” and observing that “it was running,” investigators “went back up here closer to the home and found this one backed-up.” An investigator said:

“The thing was all the rain water had got in up here, these manholes, because they wasn’t sealed on right. You could stand and watch the water run into it. And when a manhole is full of water and just filling like this, and your manhole down here, downstream, is running just as hard as it could run with a flow of water, you know there had to be some kind of obstruction in here to hold this water up within this manhole with the surcharge.
So, we took our wooden rods, three and a half feet long, and a cutter, and went down here where we could get in the manhole, and I put a man in there to push rods upstream to try to relieve whatever this blockage was in this line. And all we found was just the bottom of the pipe was just full of gravel, like two or three inches of gravel. And they pushed just as far as they could push the rod. That is a pretty long stream for a man to push by hand.
Q How many rods did you get in there and push?
A Forty-nine.
Q Forty-nine rods?
A Yes, sir.
Q At three and a half feet per rod?
A Right.”

The sanitary sewer line serving the Boyer dwelling was eight inches in diameter but the investigator noted two or three inches of gravel within it, acting “like a creekbed,” and “restricting it.” The investigator added that “the line was put in like to carry the sewage away from these homes, this development, and that eight inches was supposed to be sufficient enough to carry that; but once you get the rain water in there it wasn’t designed for that, to carry all that water. .. . there is only one way for the water to go, to try to relieve the weight of the water from this manhole surcharging, is to run up this sewer system and go back into this house, and if they have got any kind of outlet in their basement it is going to come up out of there.”

The sewer system had been installed by contractors engaged by WSSC for that purpose, beneath the platted lines of streets already dedicated to public use by the developer as public streets. That work was done, of course, before the streets were graded and paved so that the contractors were working in open ground. During installation manhole structures designed to provide access to the sewer system were left in such manner that they projected above the proposed but unimproved roadbed to a height of eight to ten inches or more. These were constructed of brick, mortar and concrete with metal rings and tops. After the sewer line was installed, WSSC inspected the same and released the ground to the developer for installation of other utilities such as storm drains, curbs and gutters; and the grading and paving of street beds.

The sanitary sewer system was designed to be sealed to prevent the admission of surface water. Yet, water in great volume and carrying debris had entered the system through breaks in manhole installations along its course. It is uncontradicted that numerous manhole structures had been damaged by extraneous forces. The nature of and the responsibility for such extraneous forces are disputed.

The Factual Dispute

We reiterate that in the posture in which this case reaches this Court, the liability of WSSC to the Boyers was established below and is not an issue here. The disputed issues concern WSSC and Grady, inter sese.

WSSC contends that agents, servants and employees of Grady damaged the manhole structures while negligently using heavy equipment in the grading or paving of streets.

Grady offers a dual answer to the WSSC contention, namely: (a) that although there is a possibility that the use of heavy equipment may have caused the damage, the evidence does not rise above guess or conjecture, and (b) that in any case the grading and paving of streets was done by independent contractors for whose negligence Grady would not be accountable.

Grading and/or Paving As Causative

Grady urges that the record demonstrates that other wholly distinct and unrelated causative factors were equally likely to have produced the harm complained of. Grady cites operators of automobiles, trucks, installers of public utilities and “many, many, independent contractors and personnel” entering the project daily. Defective installation of the sewer system or its improper maintenance is suggested also as equally likely to have been the cause of the harm.

We reject this contention of Grady-. We acknowledge that the record indicates that there is a possibility that damage to the manhole structures may have been produced by factors other than the careless use of street grading or paving equipment. We are persuaded, however, from our examination of the record as a whole, that the issue of causation was a matter for the jury within the rule discussed in Otis Elevator Co. v. LePore, 229 Md. 52, 181 A. 2d 659 (1962), wherein the Court of Appeals after pointing out that “Reasonable probability is the usual quantum of proof required to establish causation,” (pp. 57-58 [662]) adopted the following language from Prosser, Torts (2nd ed.), § 44:

“ ‘Plaintiff is not, however, required to ... negative entirely the possibility that the defendant’s conduct was not a cause, and it is enough that he introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. The fact of causation is incapable of mathematical proof, since no man can say with absolute certainty what would have occurred if the defendant had acted otherwise. Proof of what we call the relation of cause and effect, that of necessary antecedent and inevitable consequence, can be nothing more than “the projection of our habit of expecting certain consequents to follow certain antecedents merely because we had observed these sequences on previous occasions”. If as a matter of ordinary experience a particular act or omission might be expected, under the circumstances, to produce a particular result, and that result in fact has followed, the conclusion may be permissible that the causal relation exists.
“ ‘Circumstantial evidence or common knowledge may provide a basis from which the causal sequence may be inferred [from the existence of a condition which] “greatly multiplies the chances of accident, and is of a character naturally leading to its occurrence” ... 1 When a child is drowned in a swimming pool, no one can say with certainty that a life guard would have saved him; but the experience of the community permits the conclusion that the absence of the guard played a significant part in the drowning. Such questions are peculiarly for the jury; and whether proper construction of a building would have withstood an earthquake, or whether reasonable police precautions would have prevented a boy from shooting the plaintiff in the eye with an airgun, are questions on which a court can seldom rule as a matter of law.’ ” 229 Md. at 58-59,181 A. 2d at 662.

See also: Peterson v. Underwood, 258 Md. 9, 17, 264 A. 2d 851, 855 (1970); Unsat. C. & J. Fund Bd. v. Bowles, 25 Md. App. 558, 561 et seq., 334 A. 2d 532, 535 et seq. (1975).

We think that the nature and extent of the damage to the manhole structures, coupled with the circumstance that numerous such structures sustained damage, reasonably would permit a jury to conclude that it is more probable than not that negligent use of grading or paving equipment was the causative agency for the harm to the Boyers. A jury question was presented upon the issue of causation.

Grady Responsibility

The initial question whether Grady is responsible under the doctrine of respondeat superior is easily answered in the negative. We shall say no more than that the uncontradicted evidence establishes that all grading and paving of streets was done by independent contractors, wholly without retention by Grady of any control upon their performance.

In Hoerr v. Hanline, 219 Md. 413, 420-21, 149 A. 2d 378, 381 (1959 ), it was said:

“All of the authorities agree that the rule of respondeat superior, which requires one person to answer for the acts of another, arises from the relation of principal and subordinate. It only applies when the relation of master and servant, employer and employee or principal and agent is shown to exist between the wrongdoer and the person sought to be charged for the result of the wrong. It does not apply when the wrongdoer is an independent contractor, even though there be an agreement or ‘arrangement’ between him and the4' person who is claimed to be responsible for the wrong.”

Determination of that initial question is not, however, dispositive of the question of Grady’s responsibility. This is so because there are exceptions to the application of the rule of employer non-liability for the negligence of independent contractors. The Court of Appeals put it this way in Samson Construction Co. v. Brusowankin, 218 Md. 458, 464, 147 A. 2d 430, 434(1958):

“The cases make it plain that the mere employment of an independent contractor will not always relieve the principal from liability for damage done by the contractor.”

Indeed, the rule of non-liability has been declared to have such myriad exceptions that its continued viability as a general principle of law has become suspect.

Prosser, Law of Torts, Ch. 12, § 71, at 468 (4th Ed., HB, 1971i puts it thus:

“. . . the prediction has been made that ultimately the ‘general rule’ will be that the employer is liable for the negligence of an independent contractor, and that he will be excused only in a limited group of cases where he is not in a position to select a responsible contractor, or the risk of any harm to others from the enterprise is obviously slight. The English courts have taken steps in this direction, until the position of the ordinary independent contractor in England approaches that of a servant. The American courts, have not gone so far, and have continued to repeat the ‘general rule’ of non-liability with exceptions, whose very number is sufficient to cast doubt upon the validity of the rule.”

WSSC contends that even if the grading and paving of streets was accomplished through independent contractors, liability still would attach to Grady for the negligent performance of such work for any of the following reasons:

1. Grady’s obligation was non-delegable.
2. The work was inherently dangerous.
3. The injury was caused by the thing contracted to be done, not by collateral negligence.

The contentions above are interrelated and will be considered together. The interrelationship of the several WSSC contentions and the continuing erosion of the general rule of employer non-liability for the negligence of independent contractors is thoughtfully posited in Prosser, Law of Torts, Ch. 12, § 71 (4th Ed., HB, 1971), Imputed Negligence; Independent Contractors:

“Non-delegable Duty
A different approach, adopted in several of the exceptions to the general rule of non-liability, has been to hold that the employer’s enterprise, and his relation to the plaintiff, are such as to impose upon him a duty which cannot be delegated to the contractor. It has been mentioned earlier that there are numerous situations in which it may be negligence to rely upon another person, and the defendant is not relieved of the obligation of taking reasonable precautions himself. But the cases of ‘non-delegable duty’ go further, and hold the employer liable for the negligence of the contractor, although he has himself done everything that could reasonably be required of him. They are thus cases of vicarious liability.
It is difficult to suggest any criterion by which the non-delegable character of such duties may be determined, other than the conclusion of the courts that the responsibility is so important to the community that the employer should not be permitted to transfer it to another. So far as they may be willing to broaden the category in the future, the law may approach an ultimate rule that any duty which can be found to rest upon the employer himself cannot be delegated to an independent contractor.” at pages 470-72.
‘Inherently Dangerous’Activities
The leading English case of Bower v. Peate, in which the foundation of the plaintiffs building was undermined by an excavation, adopted still another approach, saying that the employer would be liable for the negligence of the contractor if, in the course of the work, injurious consequences might be expected to result ‘unless means are taken to prevent them.’ This gave rise to an exceptional category of work likely to be peculiarly dangerous ‘unless special precautions are taken.' American courts on the whole have preferred to adopt the language of Judge Dillon as to work which is ‘inherently dangerous.’ Neither phrase has ever yet been very well defined by anyone, and they are apparently intended to mean very much the same thing. They have been used more or less interchangeably by the courts, which usually state and rely upon both as the basis of an exceptional rule. If there is a distinction, it is that the ‘special precautions’ exception is more commonly applied where the employer should anticipate the need for some one specific precaution, such as a railing around an excavation in the sidewalk while ‘inherent danger’ is used where the work calls for a whole set of precautions, against a number of hazards, as in the case of painting carried on upon a scaffold above a highway.
But liability on either basis has been extended beyond this, to work which, in its nature, will create some peculiar risk of injury to others unless special precautions are taken — as, for example, excavations in or near a public highway, or construction or repair work on buildings adjoining it or likely to obstruct it, and similar activities, such as the clearing of land by fire, tearing down high walls or chimneys, the construction of a dam, and many other kinds of work.
So far as the cases indicate the principle seems to be limited to work in which there is a high degree of risk in relation to the particular surroundings, or some rather specific risk or set of risks to those in the vicinity, recognizable in advance as calling for definite precautions. The emphasis is upon the ‘peculiar’ character of the risk, and the need for special, unusual care.” at pages 472-73.
‘Collateral’Negligence
Another distinction, as yet not very exactly defined, is the rule generally accepted, that the employer is liable only for risks inherent in the work itself, and not for ‘collateral’ or ‘casual’ negligence on the part of the contractor.... It is very closely related to the exception as to ‘inherent danger,’ and seems in reality to represent nothing more than a negative statement of it, describing the type of situation in which the special danger is not necessarily involved in the work to be done, and not contemplated in connection with the way it is expected to be done.
The test of ‘collateral’ negligence, therefore, appears to be, not its character as a minor incident or operative detail of the work to be done, but rather its disassociation from any inherent or contemplated special risk which may be expected to be created by the work. The employer is not liable because the negligence is ‘collateral’ to the risk created — which is to say, that the performance of the work contracted for in the normal manner contemplated by the contract would involve no expectation of such a risk of harm to the plaintiff, and it is the abnormal departure from usual or contemplated methods by the servants of the contractor which has created the danger. Where the peculiar risk is involved in the work to be done itself, as where a sign is to be painted over the sidewalk, the fact that the risk which was to be expected materializes through the incidental negligence of the servant in dropping the bucket will not relieve the employer of liability. But where the employer reasonably expects that windows will be painted in place on the building, and the contractor decides to remove them and in the process drops one five floors, the negligence is collateral to the risk.” at pages 474-75.

The several theories of Grady liability advanced by WSSC have been the subject of consideration and discussion in numerous Maryland cases.

In P., B. & W. R. Co. v. Mitchell, 107 Md. 600, 69 A. 22 (1908), it was said:

“The question of the extent to which the employment of an independent contractor to do work, placed entirely under his control, will relieve the employer from liability for injuries resulting to third persons has not only been much discussed by other tribunals but has been fully considered, in the light of the authorities applicable to it, and passed upon by this Court in a number of cases, among which are Deford v. State, use of Keyser, 30 Md. 179; City & Suburban R. R. Co. v. Moores, 80 Md. 348; Bonaparte v. Wiseman, 89 Md. 12, and Samuel v. Novak, 99 Md. 558. As a result of these cases it may now be said to be settled in this State that although, when the work is being done by an independent contractor the employer will not be liable for an injury caused by negligence in a matter collateral to the contract, he will be liable if the injury be caused by the thing contracted to be done, or if it be such as might have been anticipated by him, as a probable consequence of the work let out to the contractor, and he took no precaution to prevent it. The principle thus broadly stated embraces the subordinate proposition, separately discussed in many cases and especially appropriate to the one now before us, that the duty to refrain from interfering with the right of the public to the safe and unimpeded use of highways and streets is one of which an employer cannot divest himself by committing work to a contractor. ” (Emphasis added.) 107 Md. at 606, 69 A. at 424.

In Pierson v. Gohr, 126 Md. 385, 399, 94 A. 1021, 1025 (1915), it was said:

“Giving full effect to the doctrine of independent contractor, an important question in this case is whether the appellants did not owe a duty to the appellee to protect him from the results of such negligence of an employee of Brown as caused this injury, and we cannot say they did not, under the facts disclosed by the record, nor could the Court say, as a matter of law, he performed that duty, and take the case from the jury. It would not do to say that a general contractor, who has charge of a building, and who does some of the work himself, and contracts with others to do other parts of it in and about the building, owes no duty to an employee of a subcontractor to see that the employees of another such contractor do not by their negligence injure him, if the injury is such as might have been anticipated by the contractor, and he could by reasonable precautions have protected him and others rightfully there.” (Emphasis added.)

In Surry Lumber Co. v. Zissett, 150 Md. 494, 507, 133 A. 458, 463 (1926), it was said:

“There is a class of cases, in which the thing to be done is of such a character that the defendant, in an action to recover damages for injuries resulting therefrom, is bound to anticipate that such injuries may naturally result from it, or where the mere doing of the work involves the violation of a duty, to which the defence of independent contractor is not applicable.” (Emphasis added).

In City & S. Ry. Co. v. Moores, 80 Md. 348, 353-54, 30 A. 643, 644 (1894), it was said:

“The general principles applicable to a case where work is to be done by a contractor, upon his own responsibility, who is not subject to the control of the employer as to the manner in which it is to be performed, are so familiar and well-established that it would be useless to go into any extended discussion of them. The difficulty generally is to determine who is to be regarded as the master of the wrongdoer under the facts arising in the particular case before the Court, and whether there is any such relation existing between the person for whom the work is to be done and the negligent party, as to hold the former responsible by third persons through such negligence. Even if the relation of principal and agent, or master and servant, do not, strictly speaking, exist, yet the person for whom the work is done may still be liable if the injury is such as might have been anticipated by him, as a probable consequence of the work let out to the contractor, or if it be of such character as must result in creating a nuisance, or if he owes a duty to third persons or the public in the execution of the work.” (Emphasis added.)

See also Bonaparte v. Wiseman, 89 Md. 12, 21-22, 42 A. 918, 919 (1899), wherein it was said:

“In the case of the Ohio Southern R. R. Co. v. Morey, 47 Ohio St. 207, the Court say: ‘One who causes work to be done is not liable ordinarily for injuries that result from carelessness in its performance by the employee of an independent contractor to whom he has left the work without reserving for himself any control of an execution of it. But this principle has no application where the resulting injury instead of being collateral and following from the negligent act of the employee alone, is one that might have been anticipated as a direct or probable consequence of the performance of the work contracted for, if reasonable care is omitted in the course of its performance. In such case the person causing the work to be done will be liable, though the negligence is that of any employee of an independent contractor.’ In the same case, at p. 214, the Court say: ‘It is equally clear that the law devolves upon every one about to cause something to be done which will probably be injurious to third persons, the duty of providing that reasonable care shall be taken to obviate its probable consequences.’ ”

Although the subject case does not fall into any neat pattern of employer liability, we find the facts and circumstances shown in this record to be such as present a jury question whether vicarious liability attached to Grady.

We are persuaded that a synthesis of these cited Maryland cases demonstrates that the principles stated in Prosser, supra, long have been recognized as the law of this State. It is plain, in short, that Maryland Courts long have recognized that a searching examination of the facts and circumstances of the particular case must be made before non-liability of an employer for the negligence of his independent contractor will be declared as a matter of law.

In the subject case there was evidence tending to show that the projecting sanitary sewer structures would be subject to damage if struck by heavy grading or paving equipment and that such damage likely would destroy the integrity of an essential requirement of the system, i.e., that surface water be denied entry to it. Thus there was great risk of harm if the street paving work was negligently performed. See Prosser, supra, at 468, 473; P., B. & W. R. Co. v. Mitchell, supra; footnote 2, supra.

There can be no doubt that the public health and safety is placed in jeopardy whenever a sanitary sewer system’s imperviousness to surface water is destroyed. We hold that when an enterprise is undertaken the performance of which poses a high potential for harm to such a system, a duty to the public to guard against the danger arises. We think such duty “is one of which an employer cannot divest himself by committing work to a contractor.” P., B. & W. R. Co. v. Mitchell, supra, at 606 [424].

Where, as here, the risk of such harm is involved in carrying out the work to be done under the contract, ensuing negligence cannot be deemed collateral to its performance. Prosser, supra, at 475. The employer “is bound to anticipate that such injuries may naturally result”, Surry Lumber Co. v. Zissett, supra, at 507 [463], particularly, “if he owes a duty to third persons or the public in the execution of the work.” City & S. Ry. Co. v. Moores, supra, at 354 [ 644]. We think such a duty was owed.

Grady’s motion for a directed verdict should have been denied. Judgment N.O.V. in favor of Grady was erroneously entered.

Cross-Claim of WSSC

The cross-claim of WSSC had sought indemnification in the event of a recovery by the plaintiff because “such damages were the result of the concurring negligence of the defendant, Grady Development Corporation and that Grady’s concurring negligence was active and primary and any negligence on the part of this defendant was passive and secondary.”'

The trial court’s charge to the jury upon the issue of WSSC liability was clear and concise. It controls our decision upon the question of indemnification. It was as follows:

“In this case I instruct you as a matter of law, first, concerning the Washington Suburban Sanitary Commission, that the Washington Suburban Sanitary Commission was under a duty to properly inspect and maintain its sewer system that was located in the development that the Boyers lived. They had designed this sewer system, and as a consequence they took control over it in 1973, and it was upon them to reasonably inspect it and reasonably maintain it, and if a defect existed in this system they were required to fix it. However, if such a defect existed in the system they first must be given some kind of notice of such defect, and this notice can be given to them either actually or by what we call constructive notice, and after notice of some sort, whether actual or constructive, they did not properly repair the defect after it came to their notice then your verdict would be for the plaintiff, and after full and fair consideration if you are convinced by a preponderance of the evidence that the defendant Washington Suburban Sanitary Commission failed to act as reasonable people in the operation and maintenance of their sewer system your verdict would be for the plaintiff. If, however, you are not convinced by a preponderance of the evidence or the evidence that has been produced here on the part of the plaintiffs that they are entitled to recover, then your verdict accordingly would be for the defendant.”

It will be noted that the jury specifically was instructed that liability would not attach to WSSC unless it had actual or constructive notice that a defect in the system existed that it had failed to repair in accordance with its affirmative duty to do so. The verdict of the jury against WSSC thus established the breach by it of an affirmative duty. No appeal was perfected by WSSC from the judgment entered upon that verdict.

There is, accordingly, no basis for a finding that the negligence of WSSC was passive and secondary. Its liability was not vicarious. Compare Pennsylvania Threshermen & Farmers’ Mutual Casualty Insurance Company v. Travelers Insurance Co., 233 Md. 205, 196 A. 2d 76 (1963).

Judgment N.O.V. in favor of Grady reversed and case remanded for entry of judgment in accordance with the jury's verdict.

Judgment on cross-claim affirmed as to indemnity, reversed as to contribution.

One-half of the costs to be paid by appellant; one-half to be paid by appellee.

      . The action had included counts for fraud and breach of warranty against Grady. Those counts, however, had resulted in judgments in favor of Grady following the grant of motions for directed verdicts and are in no way involved in this appeal.

      2. In the cited case of Deford v. State, use of Keyser, 30 Md. 179 (18691, the Court of Appeals had quoted with approval the following language of Baron Wilde in the English case of Hole v. R.R. Co., 6 Hurl. & Nor. 488:
      “ ‘... when the thing contracted to be done causes the mischief, and the injury can only be said to arise from the authority of the employer, because the thing contracted to be done is imperfectly performed, there the employer must be taken to have authorized the act, and is responsible for it. The present defendants were authorized to take land for the purpose of their railway, and to build a bridge over the Swale. Instead of erecting the bridge themselves, they employed another person to do it. What was done was done under their authority. In the course of executing their order, the contractor, by doing the work imperfectly, obstructed the navigation. It is the same as if they had done it themselves. It is not distinguishable from the case where a land owner orders a person to erect a building upon his land which causes a nuisance. The person who ordered the structure to be put up is liable, and it is no answer for him to say that he ordered it to be put up in a different form.’ ” 30 Md. at 206.

      . The cross-claim also sought contribution, to which under the circumstances of this case WSSC is entitled.


source: Caselaw Access Project

author: Moylan, j.,

license: Public Domain

text:
    LEWIS F. COLEMAN v. STATE OF MARYLAND
    [No. 1211,
    September Term, 1976.]

      Decided September 14, 1977.

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

      Richard R. Cooper, with whom were Burt, Cooper & Wadkovsky on the brief, for appellant.,

      Bruce C. Spizl'er, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and John T. Clark, III, State’s Attorney for Queen Anne’s County, on the brief, for appellee.
   Moylan, j.,

delivered the opinion of the Court.

As the species homo sapiens slowly evolved from the baser life forms, both a congregating into a family group and a division of labor therein became saliently characteristic. ■ Man was the hunter and the warrior; Woman, the keeper of the hearth and the rocker of the cradle. Even latter-day refinements were little more than variations upon this primordial theme. An increasingly organized society fashioned customs and then conventions and then laws to enforce the obligations implicit in this division. In the post-World War II enlightenment, however, such notions appear as remote as the Pleistocene. Organized society may still make distinctions based upon physical prowess, intellectual endowment, earning capacity, etc., but it may no longer arbitrarily assign roles and obligations automatically upon the basis of gender.

This enlightenment found expression in our own sovereignty on November 7, 1972, with the ratification of Article 46 of the Maryland Declaration of Rights:

“Equality of rights under the law shall not be abridged or denied because of sex.”

Against this bench mark, we are now squarely called upon to assess the constitutionality of Article 27, § 88 (a) , of the Annotated Code of Maryland, which, in pertinent part, provides:

“Any person who shall without just cause desert or wilfully neglect to provide for the support and maintenance of his wife shall be deemed guilty of a misdemeanor, and upon conviction in any court of the State having criminal jurisdiction shall be punished by a fine not exceeding one hundred dollars, or imprisonment in the Maryland House of Correction, or in jail, for not more than three years, or both, in the discretion of the court.”

Against the new standard, we find that this Maryland criminal provision, which may have served a purpose in its time, is now constitutionally wanting.

The appellant, Lewis F. Coleman, was convicted in the Circuit Court for Queen Anne’s County by Judge K. Thomas Everngam, sitting without a jury, of both desertion and non-support of his wife in contravention of Article 27, § 88 (a). He was sentenced to serve a term of 30 days in the custody of the Sheriff of Queen Anne’s County and was placed on probation for a period of three years. He raises before us, as he did at his trial, the constitutionality of a law which makes it a crime for a husband to fail to support his wife and a crime for a husband to desert his wife, but which does not create reciprocal crimes for the wife who deserts or fails to support her husband.

Factually, there is no question but that the appellant falls under the sanction of this law, if the law be viable. The appellant and his wife were married on October 25, 1970. They had no children. They lived together in a home they were purchasing in Queen Anne’s County until November 22, 1975. On that day, the wife returned home from shopping to find the appellant with his truck backed up to the door of the house. He was loading a television set, a chest of drawers and all his personal effects. He told his wife that he was leaving and that he would not return until he was ready. He never returned. Above and beyond this desertion, there was clear evidence of non-support as well. The appellant made several mortgage payments on the home but also missed several payments. He made sporadic and erratic payments on the electric bill, taxes and insurance, his wife’s car and for some clothing charged by her. He made no payments directly to his wife. At real issue here is not the state of the facts but only the constitutionality of the underlying law itself.

Initially, we have no difficulty in rejecting the State’s contention that the appellant lacks standing. Under the questioned law, the appellant himself was indicted, tried and convicted. He is under sentence according to that law. This case bears no resemblance to the situations we were dealing with in Minner v. Minner, 19 Md. App. 154, 310 A. 2d 208, and Colburn v. Colburn, 20 Md. App. 346, 316 A. 2d 283. In both of those cases, husbands had been ordered to pay counsel fees and alimony. They challenged the constitutionality of those orders under the new sexual equal rights amendment. It was held in both of those cases that they lacked standing to raise the constitutional question because they had not petitioned for reciprocal awards of alimony and counsel fees to themselves and could not, therefore, claim that they had been denied rights on the basis of their sex. The case of Hughes v. State, 14 Md. App. 497, 287 A. 2d 299, urged upon us by the State in this regard, is even more inapposite. The defendant there, convicted of a perverted practice with a minor, attempted to attack the constitutionality of the law against perverted practices on the grounds that the law, if applied to consenting adults and particularly if applied to husband and wife, would offend the Ninth and Fourteenth Amendments. We there held that since the defendant was not in such a class, he lacked the standing to question constitutionality, which standing might be possessed by members of that class. In the case at bar, the law applied directly to the appellant and to no one else. He squarely enjoys standing to question its constitutionality.

Section 88 (a) was enacted into law by Chapter 73 of the Laws of Maryland of 1896. It accurately reflected the Zeitgeist of the 19th Century. A woman, deserted by her husband, would be a ward of the State, a charge or burden on the community at large. The criminal sanction was enacted to allocate the burden of support to the “lawful breadwinner” and not to the neighbors and fellow villagers. A man, on the other hand, deserted by his wife was not contemplated as one who would become a financial burden upon the community. The predicate for the law, however, rested upon a broader base than the mere fear that the wife, unsupported by her husband, would become a public charge. The duty of the husband to support the wife, above and beyond the question of her financial need, was warp and woof of the prevailing ethos of the times. In discussing the background of § 88 (a), Ewell v. State, 207 Md. 288, 292, 114 A. 2d 66, spoke of the general attitude of the common law:

“At common law ... [t]he husband had an obligation of support, which was to furnish necessaries to the wife. If he did not, her remedy was to purchase the necessaries on his credit. The meaning of the term necessaries was relative, elastic and dependent upon circumstances, that is, the means and station in life of the couple. The liability of a husband was not limited merely to articles necessary to sustain life or to preserve decency but extended to things which would be desirable and suitable in view of the rank, fortune, earning capacity of the husband and the mode of living of the couple. The liability of the husband to furnish necessaries did not depend upon whether the wife had means of her own and was able to pay for them herself, at least in Maryland.”

Judge Offutt had earlier said for the Court of Appeals in McFerren v. Goldsmith-Stern Co., 137 Md. 573, 577-578, 113 A. 107:

“If then the husband’s duty to supply his wife with necessities depends upon the marital relation and the obligations incident thereto, it cannot be said to depend upon, nor be affected by her ability to procure such necessities from her separate estate, and such seems to be the general view. .. . ‘The right of a wife to support from her husband and his duty to support her do not depend upon the inadequacy of her means, but upon the marriage relation. Her implied authority to pledge his credit springs from his obligation, as husband, to provide for her, and not from the fact that otherwise she will be destitute.’ .. . And in our opinion the principles so stated are not only established by our decisions, but are entirely consonant with reason and the best considered authority elsewhere.”

See also Wald v. Wald, 161 Md. 493, 159 A. 97.

This was unquestionably the traditional view. Over the more than eight decades following the promulgation of § 88 (a), however, that view has been subjected to a series of violent cultural shocks. The Equal Rights Amendment of 1972 more accurately reflects the ethos or Zeitgeist of this time. In Rand v. Rand, 280 Md. 508, 374 A. 2d 900, Chief Judge Murphy for the Court of Appeals assessed the impact of the Equal Rights Amendment upon the traditional viewpoint toward sex-based classifications, at 374 A. 2d 904-905:

“Like the Supreme Court of Washington ... we believe that the ‘broad, sweeping, mandatory language’ of the amendment is cogent evidence that the people of Maryland are fully committed to equal rights for men and women. The adoption of the E.R.A. in this state was intended to, and did, drastically alter traditional views of the validity of sex-based classifications.”

In Rand v. Rand, the Court of Appeals quotes with approval the decision of the Supreme Court of Pennsylvania in Henderson v. Henderson, 458 Pa. 97, 101, 327 A. 2d 60, 62 (1974). In interpreting an Equal Rights Amendment virtually verbatim with Maryland’s, Pennsylvania ruled it unconstitutional to require a husband to post security for costs in a pending divorce under a statute burdening men only. The Supreme Court of Pennsylvania there said:

“The thrust of the Equal Rights Amendment is to insure equality of rights under the law and to eliminate sex as a basis for distinction. The sex of citizens of this Commonwealth is no longer a permissible factor in the determination of their legal rights and legal responsibilities. The law will not impose different benefits or different burdens upon the members of a society based on the fact that they may be man or woman.”

Measured against the clear command of the Equal Rights Amendment, there is no question that § 88 (a) cannot pass muster. To establish that it is a crime for a husband to desert his wife but no crime for a wife to desert her husband and to establish that it is a crime for a husband to fail to support his wife but no crime for a wife to fail to support her husband is to establish a distinction solely upon the basis of sex. In Rand v. Rand, Chief Judge Murphy pointed out that such distinctions are now absolutely forbidden, at 374 A. 2d 902-903:

“To ascertain the mandate of the constitutional amendment, we look first to the ‘natural and ordinary signification’ of its language. Balto. Gas & Elect. Co. v. Board, 278 Md. 26, 358 A. 2d 241 (1976). If that language is clear and unambiguous, we need not look elsewhere. Harden v. Mass Transit Adm., 277 Md. 399, 354 A. 2d 817 (1976); Md.-Nat'l Cap. P. & P. v. Rockville, 272 Md. 550, 325 A. 2d 748 (1974). The words of the E.R.A. are clear and unambiguous; they say without equivocation that ‘Equality of rights under the law shall not be abridged or denied because of sex.’ This language mandating equality of rights can only mean that sex is not a factor. See Brown, Emerson, Falk, and Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871 (1971).”

In the Rand v. Rand case itself, the Court of Appeals held that both the mother and the father share financial responsibility for the support of the children of the marriage.

Indeed, the purpose that once animated § 88 (a) is no longer the public policy of this state. In Article 16, § 24, cataloging the causes for a divorce a vinculo, and § 25, listing the causes for a divorce a mensa et thoro, no distinction is made between whether the abandoning or deserting party is the male or female partner to the marriage. By a 1975 amendment, Article 16, § 3, was made to read:

“In cases where a divorce is decreed, alimony may be awarded to either spouse.”

The amendment added the words “to either spouse” to the section. In 1976, § 5 was amended, by deleting the word “wife’s” and substituting the word “spouse’s” so as to make subsection (a) read:

“In all cases where alimony or alimony pendente lite and counsel fees are claimed, the court may not award alimony, alimony pendente lite, or counsel fees unless it appears from the evidence that the spouse’s income is insufficient to care for his or her needs.”

Because it offends Article 46 of the Maryland Declaration of Rights, Article 27, § 88 (a), is unconstitutional. The convictions of the appellant under that unconstitutional law must, therefore, be reversed.

Judgments reversed; costs to be paid by County Commissioners for Queen Anne’s County.

      . We consider here only the constitutionality of § 88 (a). The appellant, who has no children, was convicted only under Art. 27, § 88 (a). Our discussion in no way affects the constitutionality of Art. 27, § 88 (b), which imposes criminal sanctions upon “any parent” who deserts or wilfully neglects to provide for the support of his or her minor child.

      . In view of our disposition of this case on the basis of the Maryland Declaration of Rights, it is unnecessary for us to consider whether Article 27, § 88 (a), also offends the Equal Protection Clause of the Fourteenth Amendment. See, however, Craig v. Boren, 429 U. S. 190, 97 S. Ct. 451, 50 L.Ed.2d 397 (1976).


text:
    JAMES EDWARD DUNCAN v. STATE OF MARYLAND
    [No. 1226,
    September Term, 1976.]

      Decided September 14, 1977.

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

      Robert Paul Mann for appellant.

      Amicus curiae brief filed by Joseph R. Suter, Russell J. White on the brief.

      Kathleen M. Sweeney, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, Chdrles■ A. Ruppersberger, III, Assistant State’s Attorney for

      Baltimore County, and David F. Mister, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

James Edward Duncan, a Baltimore County Police Officer, was convicted in a bench trial of the common law crime of misconduct in office. He received a suspended sentence of one year imprisonment and was placed on probation for eighteen months. In this appeal, he makes the following contentions: (1) that the evidence was legally insufficient to establish the offense charged; and (2i that prosecution was barred by the Statute of Limitations.

Sufficiency of the Evidence

There was testimony by one Michael R. Mally that during 1970, when he was dating the daughter of Officer Duncan, the latter brought his attention to the fact that the officer had become aware from police wanted flyers that Mally was AWOL from the United States Army. Mally alleged that at that point Officer Duncan had declared that, “He would keep the flyer from being served on me if I . . . got him things when he asked me to obtain things for him.” Mally then proceeded to detail a great many items of personal property acquired by Mally for Duncan. Mally said that the items had been obtained from fences or by the use of bad checks, and that the circumstances of his acquisition of the items were known to Duncan. Mally testified that he obtained the personal property for Duncan from before Christmas of 1970 “all through . . . ’til I went to, just right before I went to jail. January I think it was the 10th of 1975, and right up to about the week before I went to jail.”

The following excerpt from the cross-examination of Mally gave further amplification of his reasons for obtaining personal property for Duncan:

“Q You are suggesting to the court the reason why you did all these things for Duncan for little or no money is the fact that he was going to turn you in because you were AWOL?
A Not just that. Among other things, he took care of me when I got arrested for other things, or he’d keep the police off my back in Baltimore County, until one State Trooper got down on me, and he stayed on me, and, you know, I guess you could say he finally got me, because I’m serving time now, but — . . . For that purpose, and among other things, you know, recommendation when I got arrested for other things, that I was going for my own recognizance, he’d keep the police off my back, he would keep the Check Squad off my back, him and [another officer]. And they did these things for me in turn for the things I did for them.”

Duncan denied that he had received many of the articles of personalty allegedly delivered to him by Mally, but acknowledged receipt of the following items:

Item Date of Mally’s alleged source Transaction of acquisition
1. .38 cal. Revolver Early 1971 From fence
2. Automobile Starter Summer 1972
3. Coppertone Stove 1973
4. Deer Meat ? Illegal hunting
5. Beef ? Bad checks
6. Washing Machine Summer 1974
7. Multicolored Carpet Fall 1974
8. Blue Shag Carpet Fall 1974
9. Suede Coat December 1974

For purposes of passing upon the legal sufficiency of the evidence we find it necessary to discuss only the above items.

Duncan acknowledged that the gun, the washing machine and the carpeting, all were new when acquired from Mally. He said he was aware that Mally had worked for a plumbing and heating firm; for the Bethlehem Steel Company, and for various marinas and knew that he had never worked in a retail store.

Duncan acknowledged that all of those new items had been obtained directly from Mally and never from a store. He said he never questioned the manner of Mally’s acquisitions. His explanation for his failure to do so as to the four new items was as follows:

The Gun
“Q Why did you decide to purchase this revolver from Michael Mally as opposed to going to a gun store?
A Well, if you go to a gun store, a weapon of that caliber at the time was selling approximately for $75.00 to $80.00. And the gun, the pistol was brand new, and Michael toíd me where he had purchased it at, and he even told me he had the receipt at home, which I never verified. However, like I say, the fact is he wanted $50.00 for it. I said, fine. I checked the gun out first; it was not stolen. I give him the $50.00 on February 6th, 1971.
Q Again, where did Michael say he purchased the gun?
A Marvin’s Gun Store in Essex.
Q You never checked with Marvin’s Gun Store, did you?
A No. The boy stated he had a receipt.
Q Did you ever see the receipt?
A No, sir; I never asked him for it.”
The Washing Machine
“Q Why did you not go to Basin’s, and pay them the money, rather than pay it to Michael Mally?
A I wasn’t buying it from Basin’s, I was buying it from Michael Mally.
Q Why?
A Because he’s the one that gave me the price on the washing machine. I shopped around for washing machines, the wife and I, and there was a variance of prices, $25.00 to $30.00 difference.
Q Did you think that Michael Mally was a retailer or wholesaler in washing machines?
A No, sir, I didn’t.
Q Did you wonder why Michael Mally was acting as a go-between between yourself and Basin’s, when you knew the washing machine came from Basin’s?
A No, I never questioned why.
Q You never asked Michael Mally how he could get you this discount?
A No, I didn’t.”
Blue Shag Carpeting
“Q So he came to your house? What was his reason for coming to the house at that time, if you know?
A Well, he come to the house, and stated to my wife and myself that he seen the Carpet Fair truck out there, wanted to know if she needed any carpet. My wife said, why, Mike? He said, I got a friend I’m helping install carpets, and I’m sure I can get you a discount on the remnants. So at that time he said, do you have any specific color in mind? We said, well, we’re sticking with the blue shag we just had installed by Carpet Fair.
Q So what did he say to you?
A He said, well, I’ll check on it, and I’ll get back with you in a day or two.
Q Did he say from whom he would get these rugs?
A No, other than the fact the fellow he was supposed to be working with installing carpeting.”
Multicolor Carpeting
“Q . . . From whom did you purchase such multicolored carpeting?
A Michael Mally.
Q Approximately when did this purchase take place, when did you actually get the carpeting from Michael Mally?
A I’d say about the last of May of 1974.
Q And how did a conversation come up between you — was there a conversation between you and Michael Mally, previous to the purchase by you of some carpeting from Mally, was there a conversation?
A Michael Mally brought approximately a twelve by sixteen piece of indoor-outdoor multicolored carpeting to my home.
Q Did it just come in out of the blue, or had you previously had a conversation?
A I had no conversation with him prior to that. He had a folded rug, brought it over to my house, and asked me if I was interested in purchasing the carpet.
Q Did he say who he was getting it from?
A He said his mother and father was having their basement redone, and it was a piece left over.
Q Did you buy it then or later buy it at all?
A He come back over that evening, and I paid him a hundred dollars for the carpeting.”
The Suede Coat
“Michael called me approximately 6:30, it was just dark, and he said, Mr. Jim, he said, I have a nice suede coat, would Miss Barb be able to use it? I said, what do you mean, Mike? He said, you know, Kathy and I split up, and I bought the coat in hopes of some reconciliation in giving Kathy the coat, and Kathy refuses to take the coat, and I’m stuck with it. I need some money. I said, how much are you talking about? He said, I’ll take $45.00 for it. I said, where is the coat now? He said, I’m over home; I’ll meet you out front. Can you come over right now? I said yes. I got in my automobile. I went over to his home. He met me in front of his home. He had this brown suede or rust-colored suede coat. And I looked at the coat and the size, gave him the $45.00, left his house,.. ,”

Duncan denied knowledge that Mally had obtained the personalty from fences or by the use of bad checks. There was, however, testimony by a Maryland State Trooper that: “[Duncan] told me he received the property from Mally, that he knew that Mally was buying things with bad checks and selling them.” A captain of Baltimore County Police confirmed that a statement to that effect had been made in his presence by Duncan.

Even in the absence of such an acknowledgement by Duncan, we are persuaded that the frequency of Mally’s deliveries to Duncan and the variety of items delivered, would have alerted the most obtuse to have questioned Mally’s source of supply and have led the most credulous to believe there was a strong probability of taint in their acquisition.

In Chester v. State, 32 Md. App. 593, 605, 363 A. 2d 605, 612, (1976), cert.3den., 278 Md. 718 (1976), we cited with approval the following quotation from Perkins, Crim. Law 2d Ed.-UTB, at 482-83:

“The prevention of outside influences tending toward corruption is not the only social interest in the official action of public officers. It is socially desirable, so far as reasonably possible, to insure that no public officer shall, in the exercise of the duties of his office or while acting under color of his office, (1) do any act which is wrongful in itself — malfeasance, (2) do any otherwise lawful act in a wrongful manner — misfeasance, or (3) omit to do any act which is required of him by the duties of his office — nonfeasance. And any corrupt violation by an officer in any of these three ways is a common-law misdemeanor known by some such name as ‘misconduct in office’ or ‘official misconduct.’ ”

We commented that this common law offense is wide-ranging and comprehensive.

That the offense has application to police officers is not open to doubt. Hitzelberger v. State, 174 Md. 152, 197 A. 605 (1938).

We are persuaded that the trial judge reasonably could have concluded that the State had shown, beyond a reasonable doubt that the course followed by Duncan from before Christmas 1970 through January 1, 1975, was wrongful in itself and that it was pursued under color of his office. There was legally sufficient evidence to convict appellant of misconduct in office.

Limitations

The Annotated Code of Maryland, Cts. & Jud. Proc. § 5-106 (1974) reads in pertinent part as follows:

“§ 5-106. Prosecution for misdemeanor.
(a) One year. — Except as provided by this section, a prosecution for a misdemeanor not made punishable by confinement in the penitentiary by statute shall be instituted within one year after the offense was committed.”

The above recodification of the Statute of Limitations on misdemeanors intended no change in the effect and meaning of the prior law (Md. Ann. Code Art. 57, § 11). McMorris v. State, 26 Md. App. 660, 665, 338 A. 2d 912, 915 (1975), aff'd. McMorris v. State, 277 Md. 62, 64, 355 A. 2d 438, 439-440 (1976).

The State acknowledges that the beginning of the prosecution in this case was the date of presentment — March 13, 1976 (State br. p. 7). The latest specific transaction between Duncan and Mally related to the suede coat delivered in the first or second week of December 1974. Mally also had stated, in general, non-specific terms, that his dealings with Duncan had continued until January 1975.

There is, accordingly, not a scintilla of evidence of any transaction between Duncan and Mally occurring within one year prior to the commencement of prosecution. The State contends, however, that misconduct in office is a “continuing offense,” prosecution for which is permissible without limitation, so long as the officer retained improperly obtained goods.

We think that Hitzelberger v. State, supra, and Purviance v. State, 185 Md. 189, 44 A. 2d 474 (1945), cited by the State as supportive of that contention, fail to do so. Hitzelberger and Purviance used the phrase “continuing offense” in the context of the admissibility of evidence, not in relationship to a statute of limitations. Purviance makes this distinction crystal clear in the following language:

“Article 57, Section 11 of the Code, 1939, forbids the commencement of a prosecution for the crime with which the defendant is here charged beyond the period of one year from the time of its commission. It does not forbid offering in evidence other facts which occurred a year before the commission of the offense charged if those acts have a natural tendency to establish the fact at issue. Article 57, Section 11, supra, is a limitation against prosecution, not a limitation against the introduction of evidence of relevant acts or of crimes other than those for which the defendant is on trial.” 185 Md. at 198,44 A. 2d at 477-78.

There are, however, cases in which the continuing offense principle has been applied to charges of misconduct in office under circumstances similar to those existing here. They are State v. McFeeley, 54 A. 2d 797 (N.J. 1947), and State v. Hozer, 116 A. 2d 193 (N.J. 1955).

In McFeeley it was said at 800-01:

“It is contended by the defendants that the indictment was found after the period of the statute of limitations had expired. That statute (R.S. 2:183-2, N.J.S.A.) provides: ‘No person shall be prosecuted, tried or punished for any offense not punishable with death, unless the indictment therefor shall be found within two years from the time of committing the offense or incurring the fine or forfeiture. * * *’
“If all of the offenses charged against the defendants were of acts which were due to be done or omitted by them before the beginning of the two year period and not thereafter, the point would have been well made; but the statute fixes no period within which it is the duty of police officials to take steps toward the laying of complaints and the prosecuting of violators of the law. Some crimes are continuing. State v. Ireland, 126 N.J.L. 444, 20 A.2d 69. An unlawful return of gambling furniture is not a continuing crime. If seized furniture is returned, the offense is complete as of the time of the return; there is no offense as to it until then and none thereafter. If, in the instant case, the furniture seized on January 6,1942, was unlawfully returned before February 27, 1943, the statute bars a prosecution begun on February 27, 1945; and if the furniture was returned after February 27,1943, the indictment, for the sake of uncertainty and to enable the accused to plead intelligently, should assign a date within the two year period. But on the other hand, if on January 6, 1942, certain persons were apprehended by the police in the act of committing a misdemeanor, those persons would be subject to prosecution for two years thereafter and no reason is shown to us why a police officer whose duty is to lodge a proper complaint against them does not remain under that duty throughout the period when the offenders are liable to prosecution, provided, of course, the officer retains his public position that long. Therefore, according to the allegations of the indictment, the defendants were under such a duty until January 6, 1944, and if, as alleged, they willfully neglected throughout that period to perform the duty of lodging complaints, they were subject to prosecution on account thereof at the time the present indictment was returned. We conclude that the statute of limitations had not run against that accusation.”

In Hozer, supra, it was said:

“Hozer next argues that somehow he was exonerated by the statute of limitations. The operations at 452 and 454 Palisade Avenue ceased on May 1, 1950. If the two-year statute of limitations under N.J.S. 2A: 159-2, N.J.S.A. (formerly R.S. 2:183-2) applied to Erickson and his fellow wrongdoers, they were indictable until May 1, 1952. If the four-year period under N.J.S. 2A:159-4, N.J.S.A. applied, they were indictable until May 1, 1954. In either event, the indictment filed March 10, 1953 against Hozer was timely. His duty as to the offenders continued throughout the period while they were liable to prosecution, and, until the lapse of two years after the statute ran in their favor, he was indictable for his willful failure to discharge that duty. State v. McFeeley, 136 N.J.L. 102, 54 A. 2d 797 (Sup. Ct 1947); and see State v. Weleck, 10 N.J. 355, 374, 91 A. 2d 751 (1952).” 116 A. 2d at 198.

The reasoning of the opinions in McFeeley and Hozer is persuasive in the subject case. Mally would have been subject to prosecution in the suede coat bad check case until November 1975. Thus under the McFeeley, Hozer rule, Duncan would have been under a continuing obligation as a police officer to bring Mally to justice until the latter date. His presentment on March 16, 1976, thus would be within one year of the time he last wilfully neglected to perform his duty, i.e., to lodge a complaint against Mally.

Tending to counterpoise those decisions, however, is the rule of construction declared by the United States Supreme Court in Toussie v. United States, 397 U. S. 112, 114-15, 90 S. Ct. 858, 860, 25 L.Ed.2d 156, 161 (1970), where the Court stated:

“The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity. For these reasons and others, we have stated before ‘the principle that criminal limitations statutes are “to be liberally interpreted in favor of repose,” United States v. Scharton, 285 US 518, 522, 76 L Ed 917, 919, 52 S Ct 416 (1932).' United States v Habig, 390 US 222, 227, 19 L Ed 2d 1055, 1059, 88 S Ct 926 (1968). We have also said that ‘[sjtatutes of limitations normally begin to run when the crime is complete.' Pendergast v United States, 317 US 412, 418, 87 L Ed 368, 372, 63 S Ct 268 (1943); see United States v Irvine, 98 US 450, 452, 25 L Ed 193, 194, (1879). And Congress has declared a policy that the statute of limitations should not be extended ‘[e]xcept as otherwise expressly provided by law.’ 18 USC § 3282. These principles indicate that the doctrine of continuing offenses should be applied in only limited circumstances since, as the Court of Appeals correctly observed in this case, ‘[t]he tension between the purpose of a statute of limitations and the continuing offense doctrine is apparent; the latter, for all practical purposes, extends the statute beyond its stated term.’ 410 F2d, at 1158. These considerations do not mean that a particular offense should never be construed as a continuing one. They do, however, require that such a result should not be reached unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.”

We are confronted, accordingly, with the question whether the McFeeley, Hozer rule should be applied or whether the general rule declared in Toussie, supra, bars its application under the facts of this case.

A somewhat analogous issue confronted the Court in State v. Webb, 311 So. 2d 190 (Dist. Ct. App., 2d. Dist., Fla. 1975), cert. den. 317 So. 2d. 768 (1975). In Webb the general manager of a radio station on May 12, 1970, installed and commenced and continued using radio equipment in his station that he knew had been stolen on May 11,1970. Webb was arrested and charged on July 20, 1973, more than three years after receipt and use of the equipment. On these facts a divided Court said:

“The sole point on appeal is whether or not the crime of receiving and concealing stolen property under Fla.Stat. § 811.16 is a ‘continuing offense’ or whether or not the statute of limitations of two years as provided in Fla.Stat. § 932.465(2) begins to run on May 12, 1970, when Dexter installed the radio equipment on the premises of the radio station with the full knowledge of Webb at that time that the equipment was stolen.
“We hold that the crime of receiving and concealing stolen property is not a continuing offense and that the statute of limitations begins to run when the crime is complete, to wit: when the property is received and concealed with the knowledge that the same is stolen.” 311 So. 2d. at 191.

The majority opinion went on to cite the quotation from Toussie, supra, that we previously have quoted in this opinion and added:

“The court in Toussie, supra, also held that legislative silence in a statute is ‘strongly in favor of not construing this act as incorporating a continuing-offense theory.’ Fla.Stat. § 811.16 is completely silent on the concept of a continuing offense and the nature of the crime is not such that the legislature assuredly intended that it be treated as such.
“The crime charged in this case was complete and the statute of limitations began to run on May 12, 1970, when Webb received and concealed the radio equipment, knowing at that time it was stolen property. United States v. Irvine, 98 U.S. 450, 25 L.Ed. 193; Warren v. United States, 199 Fed. 753; Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931; United States v. Mendoza (D.C.Cal.) 122 F.Supp. 367.
“Fla.Stat. § 811.16, being silent as to the concept of a continuing offense, is like the federal statute involved in Toussie, supra. If we reverse this case we would be creating an exception to the statute of limitations by rewriting a plain and unambiguous statute. This we are not authorized to do, as such authority is vested exclusively in our legislature.” 311 So. 2d. at 192.

The dissenting judge said:

“I dissent. I accept, of course, Toussie v. United States, supra, as good law and refer specifically to that portion of the opinion therein quoted above, and italicized in part in the majority opinion, viz.:
‘[Well recognized principles indicating that the doctrine of continuing offenses should be applied in only limited circumstances] ... do not mean that a particular offense should never be construed as a continuing one. They do, however, require that such a result should not be reached unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one. ’ (Italics added.)
I would emphasize, however, that portion thereof which I have immediately hereinabove italicized relating to the nature of the crime involved. That is to say, I think that if the very essence of the crime charged is concealment, as here, the legislature ‘must assuredly have intended’ that the crime is a continuing one until discovery is made. Otherwise, as in this very case, for example, it would be a boon to the ‘fencing’ business; and a buyer of known stolen goods need only carefully conceal them for two years after which he would be home free. The failure of the legislature expressly to declare a continuing offense may be logically explained, I think, by the fact that the statute, i. e., § 811.16, supra, also proscribes the buying and receiving of stolen property. As to those crimes, assuming no involvement of any aspect of concealment, I would agree with the majority; but as to a charge the essence of which is concealment, I would, and do, dissent.” 311 So. 2d. at 192-93.

We find the reasoning of the dissenting opinion particularly applicable to the subject case. The conduct of a police officer in concealing his knowledge of continuing criminal activity by another is an act wrongful in itself. Such concealment alone will establish the corpus delicti of the offense of misconduct in office so long as the officer’s knowledge of such continuing criminal activity co-exists with a continuing duty to disclose it. Limitations against prosecution of a police officer in such a case never will commence until that date upon which the offender himself no longer could be brought to book for the concealed offense.

We see no reason to believe that the Legislature, by passage of § 5-106, supra, intended to relieve Duncan of “the duty of police officers to take steps toward laying of complaints and the prosecution of violators of the law” after one year from the date of his discovery of the offense. McFeeley, supra. Indeed, the exception to the rule that criminal limitations statutes are to be liberally interpreted in favor of repose, acknowledged in Toussie, supra, seems clearly applicable. In this case we see no conflict between application of the continuing offense doctrine and the general rule of law set forth in Toussie, supra.

Finding no error, we shall affirm.

Judgment affirmed.

Appellant to pay the costs.

      . Cross-examination of appellant included the following:
      “Q Weren’t you suspicious Mally gave you this coat with no label at all in it?
      A No, sir.
      Q In the course of your investigations of burglaries and breaking and enterings, is it not true that quite often items subject to be stolen are things like coats, appliances?
      A Sure.”

      . There was evidence showing that Mally had obtained the suede coat and other goods from Linda Lynn of Baltimore, Inc. in November 1974, by giving a bad check at the time of acquisition.

      . The division was 2-1 in a three judge panel, the Chief Judge dissenting.

      . Duncan remained on active duty up to the time of presentment — March 16, 1976.