author: Liss, J.,

text:
    JOHN LEE McKNIGHT, JR. v. STATE OF MARYLAND
    [No. 12,
    September Term, 1976.]

      Decided October 8, 1976.

      Appeal from the Criminal Court of Baltimore (Caedin, J.).
    John Lee McKnight, Jr., was convicted in a jury trial of robbery with a deadly weapon and several lesser offenses and from judgments entered thereon, he appeals.
    The cause was submitted on briefs to Davidson, Melvin and Liss, JJ.
    Submitted by John W. Pfeifer, Assigned Public Defender, for appellant.
    Submitted by Francis B. Burch, Attorney General, Gilbert Rosenthal, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Richard Cremin, Assistant State’s Attorney for Baltimore City, for appellee.
   Liss, J.,

delivered the opinion of the Court.

Appellant, John Lee McKnight, Jr., was charged in a series of four criminal informations with robbery with a deadly weapon and several lesser included offenses, the crimes allegedly having occurred on four separate dates within a one month period and involving four different victims. Before trial, appellant filed a motion for separate trials, contending that his defense would be prejudiced if the alleged offenses were joined and he was forced to trial on all four informations at the same time. Chief Judge Dulany Foster heard and denied the motion. Appellant was tried by a jury before Judge Meyer Cardin in the Criminal Court of Baltimore; he was convicted of three counts of robbery, one count of armed robbery, and one count of assault. After denying a motion for a new trial, Judge Cardin imposed sentences, and it is from these judgments that this appeal was filed.

Appellant alleges five grounds which he contends individually and collectively amounted to reversible error. We do not agree and shall affirm. We shall discuss the alleged grounds seriatim as they are here stated in appellant’s brief:

I. The court abused its discretion in denying the motion to sever the informations due to the resultant prejudice to the accused;
II. The court abused its discretion in denying requested in-court identification procedures away from the trial table;
III. The court erred in denying the motion for dismissal and/or motion for continuance upon the amendment of Criminal Information No. 67500340;
IV. The court abused its discretion in refusing one of appellant’s witnesses from testifying after having violated the sequestration rule; and
V. The court abused its discretion in allowing rebuttal evidence beyond the scope of the case in chief, and highly prejudicial in nature.

I.

Maryland Rule 734 provides that the court “may order two or more indictments tried together if the offenses and the defendants, if there be more than one, could have been found in a single indictment.”

Maryland Rule 735 provides:

“If it appears that an accused or the State will be prejudiced by a joinder of offenses, or of defendants in an indictment or by joinder for trial together, the court may order an election or separate trials of counts, grant separate trials of defendants or provide such other relief justice requires.”

At the hearing before Chief Judge Foster, appellant argued that each criminal information charged “a separate occurrence on different days involving different witnesses on both the State’s and the appellant’s side.” He also urged that to have all four informations tried at the same time would tend to inflame the jury. We must consider 1) whether it was error to deny appellant’s motion for separate trials and 2) if it was, whether that error was prejudicial.

In Sutton v. State, 25 Md. App. 309, 313, 334 A. 2d 126 (1975), this Court stated the general rule as to severance:

“One of the factors to be considered in the trial judge’s determination of whether to grant a severance is the saving of the time and the expense that unnecessary separate trials would entail. Moreover, the decision as to whether to order separate trials is vested in the sound discretion of the trial judge. If it appears that the facts to be proved in one case are substantially the same as those in the other or that they are so closely related that the evidence necessary to show one crime is intertwined with the other, there is no reason to order a severance unless the joinder is prejudicial.” (citations omitted)

In Sutton, one of the two indictments joined for trial charged the defendant with homicide and was returned in December of 1973, while the other indictment charged an assault on a different victim and was not filed until some four months later. The Court held there was no prejudice to appellant and concluded that the trial judge properly denied the severance motion. A similar contention was raised in Baumgartner v. State, 21 Md. App. 251, 255, 319 A. 2d 592, 595 (1974); and this Court held that the appellant “errs in contending that the court must require separate trials or elect among counts where the accusations do not arise from the same transaction,” and that “[i]t is also not necessary that all the offenses charged be committed against the same victim.” See Jennings v. State, 8 Md. App. 312, 259 A. 2d 543 (1969).

Where the record discloses, as our own review of this one does, that the offenses charged are of the same general nature and formed part of a general scheme of unlawful conduct, the refusal to grant separate trials is not prejudicial. As the State pointed out at the hearing on appellant’s motion for a new trial, three of the four victims were gentlemen in their late fifties and sixties, all four of the victims lived in the same neighborhood as the defendant, three of the four victims knew the defendant by face prior to the occurrences, and the modus operandi of the assailant was strikingly similar: in three of the four cases, the victim was yoked, and in three of the four crimes the assailant ripped the victim’s pocket in an attempt to get the money.

Appellant relies principally on Bell v. United States, 332 A. 2d 351 (D.C. 1975), in which case the District of Columbia Court of Appeals held that the accused is entitled to a severance where: 1) the jury may cumulate evidence of separate crimes to find guilt or 2) where the jury may improperly infer a criminal disposition and treat inference as evidence of guilt. But the Court held further on, at 353-354:

“In this case evidence of the two offenses would not be mutually admissible at separate trials; however, the evidence as to each crime charged was sufficiently simple and distinct to meet the test of Drew v. United States, supra at 17-18, 331 F. 2d at 91-92, that: [I]f, from the nature of the crimes charged, it appears that the prosecutor might be able to present the evidence in such a manner that .. . the jury will be able to treat the evidence relevant to each charge separately and distinctly, the trial judge need .not order severance or election at the commencement of the trial. If, however, it appears at any later stage in the trial ... that there is a possibility that the jury will become or has become confused, then, upon proper motion, the trial judge should order severance.”

In the instant case the motion for severance having been denied, appellant requested that a special instruction be given prior to trial in which the jury was to be advised that since there were four different alleged offenses charged “they should remember to keep each one separate and not let the evidence as adduced to any one occurrence affect their judgment as to any other occurrence.” The trial court complied and gave the following instruction before the testimony began:

“THE COURT: Ladies and gentlemen of the jury, this trial involves four separate alleged offenses allegedly committed by the Defendant on four separate days, and you are not to consider the evidence relating to one of these occurrences as having any relevance or bearing on any other alleged occurrence. The Defendant is entitled to be judged separately on each of these separate occurrences.”

In addition, the trial court wisely repeated its cautionary admonition to the jury at the conclusion of the trial, to wit:

“Now, this trial, as I indicated earlier, involved four separate and alleged offenses committed by the Defendant on four separate days, and you are instructed not to consider the evidence relating to any one of the cases as having any relevance or bearing on any other alleged crime, and that the Defendant is entitled to be judged separately on each of the separate criminal informations.”

Although the evidence of guilt in each individual crime charged here would not be mutually admissible at separate trials (since the evidence in any one case would not directly show guilt in any other case, See Wood v. State, 191 Md. 658, 62 A. 2d 576 (1948); Jennings, supra), we believe that the similarity of circumstances and of the conduct of the appellant in the perpetration of the crimes permitted the joint trial of the four cases.

From our own review of the record, we are satisfied beyond any reasonable doubt that the facts as presented by the State were “sufficiently simple and distinct” to allow the jury to relate easily the facts of each case to the particular offense with which appellant was charged.

We find no abuse of the trial court’s discretion in denying severance of the cases and no evidence of prejudice to the appellant arising from this denial.

II.

Appellant next urges that the trial court abused its discretion in denying his request to be seated in the audience for the in-court identification. He contends that in order to insure due process it is incumbent on the State to produce evidence of a reliable and untainted identification prior to trial, or that the court, where no such evidence is forthcoming, insure the defendant a fair and impartial in-court identification free from the suggestive effect of the defendant’s being seated at the trial table next to defense counsel. We know of no such duty on the part of either the State or the court, and appellant cites no authority to support his position.

This Court has held that an accused has no constitutional right to be placed in a lineup. Bowen v. State, 5 Md. App. 713, 249 A. 2d 499 (1969). It has also held that the conduct and direction of a trial is always within the sound discretion of the presiding judge. Cummings v. State, 7 Md. App. 687, 256 A. 2d 894 (1969). In Alston v. State, 11 Md. App. 624, 629, 276 A. 2d 225, 228 (1971), this Court considered a similar request. The Court at 629-630 said:

“Although such practices as seating an accused in the audience at his trial for purposes of identification are widely used, and approved, the propriety, however, of various in-court identification techniques are still tied to the rule that the overall conduct of a trial is subject to the sound discretion of the trial judge. Moreover, this Court will not interfere with that discretion unless the trial judge clearly abuses it and, as a result, the accused is prejudiced. Turner v. State, 7 Md. App. 74."

In denying appellant’s motion, the trial court called attention to the fact that there were only two or three other individuals in the courtroom at the time of trial and that they were individuals closely resembling the defendant and were apparently brought there for the purpose of misleading the jury. Under questioning, defense counsel admitted having requested their presence “to see if the complaining witness could identify the defendant if he was not seated at the counsel’s table.”

We hold that the trial court did not abuse its discretion and acted fully within its judicial prerogative in not permitting the in-court identification to become a game of judicial Russian roulette. See White v. State, 23 Md. App. 151, 158, 326 A. 2d 219 (1974).

III.

Appellant contends that the trial court erred in denying the motion for dismissal and/or continuance which he made when during the course of the trial it developed — through the testimony of one of the alleged victims — that the date of the offense against Mr. Smith was actually December 2, 1974, rather than December 1, 1974, as charged in the criminal information. The court permitted the State to amend the information to reflect'the correct date.

Rule 714 a., Maryland Rules of Procedure provides that, “The court may permit an indictment or information to be amended at any time before verdict as to matter of form, but not as to matter of substance.”

The case law governing the granting of amendments of form is that an indictment or information may be corrected provided the amendment does not alter any of the essential elements of the offense and results in no prejudice to the rights of the defendant. Corbin v. State, 237 Md. 486, 206 A. 2d 809 (1967); Watkins v. State, 4 Md. App. 47, 240 A. 2d 787 (1968).

Appellant contends that the denial of his motion and the permission granted the State to amend the information was prejudicial to his ability to prepare his defense, pointing out that the defense was barred from finding witnesses to attest to the defendant’s location on the date in question. The record discloses, however, that defendant and his counsel were in possession of the police offense report which clearly stated the date of the offense to be December 2, 1974. In addition, when .the defendant testified on the second day of trial as to his activities on December 2, 1974, he claimed to have been at home all day; and a number of witnesses were called by the defense to substantiate his statement. Appellant made no proffer of any additional witnesses to verify his alibi, and no request was made for any additional witnesses.

We find that the court did not commit prejudicial error in denying appellant’s motion for dismissal and/or continuance upon the amendment of Criminal Information No. 67500340.

IV.

Appellant next argues that the trial court abused its discretion in refusing to permit a defense witness to testify after having violated the sequestration rule, imposed by the court at the request of the defense and the State.

Maryland Rule 753 provides, in part: “The court may upon its own motion and shall, upon the request of a party, order that the witnesses be excluded from the courtroom until called upon to testify.” The Court, in Hurley v. State, 6 Md. App. 348, 251 A. 2d 241 (1969), stated the essential purpose of the Rule: 1) to prevent a prospective witness from being taught by hearing another’s testimony; 2) its application avoids an artificial harmony of testimony that prevents the trier of fact from truly weighing all the testimony; and 3) it may also avoid the outright manufacture of testimony.

The issue — of the effect of a witness’s violation of a sequestration order — was first considered by our Court of Appeals in Parker v. State, 67 Md. 329, 10 A. 219 (1887), the facts in that case being similar to the facts here: At the beginning of a trial of a defendant charged with rape, the court ordered that the witnesses on both sides be excluded from the courtroom. In disobedience of the court’s order, a material and competent witness for the accused remained in the courtroom during the examination of the other witnesses. When the errant witness was called on behalf of the defense, the trial court refused to permit her to testify. On appeal, Judge Bryan, speaking on behalf of the Court, delivered an opinion which had the ring of a civil libertarian’s declaration. At 331-332, he said:

“It was in the discretion of the Court to order the witnesses to leave the Court room; but it is not reasonable to take away from a prisoner on trial the benefit of testimony on which his life may depend, because of the misconduct of another person.
“... Since such great care has been taken to secure the right of an accused person to prove the truth relating to the accusation against him, it would be very strange, if he should forfeit this most precious privilege by the misbehaviour of a witness. Authorities were cited at the bar for the purpose of showing that in some jurisdictions it was within the discretion of the Judge to refuse to permit a witness to testify under the circumstances stated .... If the evidence of such witness would show the innocence of a prisoner on trial for his life, then the discretion of the Judge to admit or reject the testimony amounts to a discretion to take the prisoner’s life, or to spare it.”

The ruling of the trial court was reversed and a new trial granted.

Shortly after the decision in Parker, the Supreme Court of the United States had before it a similar question; and in Holder v. United States, 150 U. S. 91, 92 (1893), Chief Justice Fuller said:

“If a witness disobeys the order of withdrawal, while he may be proceeded against for contempt and his testimony is open to comment to the jury by reason of his conduct, he is not thereby disqualified, and the weight of authority is that he cannot be excluded on that ground merely, although the right to exclude under particular circumstances may be supported as within the sound discretion of the trial court.” (citations omitted; emphasis supplied).

In Robinson v. State, 340 F. Supp. 82, 85 (D. Tenn. 1972), aff'd., 474 F. 2d 1273 (6th Cir. 1973), cert. denied, 414 U. S. 848 (1973), the Court held:

“[T]hat it was error for the trial court to disqualify a witness merely because of his disobedience to a rule requiring sequestration and in the absence of some showing of particular circumstances indicating that the witness remained in court with the consent, connivance, procurement or knowledge of the party seeking to use the witness or of his attorney.”

The effect of a witness’s violation of an order of exclusion is discussed thoroughly at 14 A.L.R.3d 16. From the cases there analyzed, it is clear that the trial court may exercise its sound discretion in determining whether the testimony of the offending witness should be admitted. Maryland has adhered to this concept and enunciated it in Cunningham v. State, 247 Md. 404, 231 A. 2d 501 (1967); Mayson v. State, 238 Md. 283, 208 A. 2d 599 (1965); Jones v. State, 11 Md. App. 468, 275 A. 2d 508 (1971); Hill v. State, 9 Md. App. 65, 262 A. 2d 573 (1970); Hurley v. State, supra; Bacheller v. State, 3 Md. App. 626, 240 A. 2d 623 (1968); and Britton v. State, 2 Md. App. 285, 234 A. 2d 274 (1967).

In its discussion of the disqualification of a witness as a consequence of disobeying a sequestration order, 6 J. Wigmore, Evidence, § 1842 (Chadbourn rev. 1976), at 477, says:

“If the order of exclusion is knowingly disobeyed, the court unquestionably has the power to refuse to admit the disobedient person to testify; and it ought to exercise this power, in its discretion, whenever there appears any reason that the proposed testimony was important, that the witness had heard the other testimony, and that he wished to know its tenor.”

Wigmore calls attention to the differences in judicial opinion in the instance of wilful disobedience by a witness without the connivance of a party to the action, but even in these instances, he suggests that the great majority of courts hold that the disqualification of the witness is within the sound discretion of the trial court. J. Wigmore, at 484.

In the light of the legal principles we have enunciated, it becomes our duty to examine the factual posture of this case to determine whether the ruling of the trial court was exercised within the permissible limits of sound discretion. Our review of the record discloses that appellant’s trial continued over a period of three days and that at the request of both the State and defense, all witnesses were sequestered. Before the beginning of each session, the witnesses were ordered to leave the courtroom, after which counsel for both sides indicated their satisfaction that all witnesses were sequestered. On the last morning of the trial, counsel for appellant advised the court that his final witness was one Irving Peay and requested the court’s assistance in securing his attendance at the afternoon session. Peay appeared at the afternoon session and testified as an alibi witness. At that point, the witness, Guy Christian, was called for the defense; and the following colloquy ensued between the witness, defense counsel, and the court:

“Q. [The Court] Mr. Christian, were you in the courtroom during the trial of this case?
A. Yes, sir.
Q. Weren’t you informed that you were not permitted to be in the courtroom?
A. No.
Q. Your attorney didn’t tell you this?
A. Yes, sir.
Q. Why did you stay in the courtroom?
A. I forgot.
Q. You were also here this morning?
A. Yes, sir.
THE COURT: You are going to be excused, you are not going to testify. Counsel informed the Court this morning that he was not calling Mr. Christian and counsel informed the Court that he was not calling this witness, and secondly, that counsel for the Defendant requested that all witnesses be sequestered at his request, and at his request all witnesses were sequestered. The witness during the course of the proceedings was in the courtroom listening to the proceedings, and, therefore, this Court will not permit this witness to testify.
MR. AZRAEL: Your Honor, first of all, I had no idea the man was in the courtroom. I certainly didn’t instruct him to come in to hear any testimony. I want the record to reflect that. Secondly, I think some inquiry should be made as to what testimony the man heard and whether or not that is going to be a disqualification for a witness because there have been some cases where some witnesses have been in the courtroom.
THE COURT: All we are interested in is in this jurisdiction, and in the opinion of this Court in view of the fact that counsel is responsible for sequestration of the witnesses and because counsel indicated earlier today that he was not going to call this witness, the Court will sustain the objection of counsel.
MR. AZRAEL: We accept (sic) to the ruling, Your Honor.”

The record reveals that the witness had been in court at least throughout the morning session, during which time the appellant and a series of alibi witnesses testified in the appellant’s behalf. Christian had been summoned as a witness for the defense; counsel for the defense had specifically informed the court that morning that Christian would not be called. It was apparently obvious to the court that the witness had been seated in the courtroom the entire day. No explanation is given for the failure of the appellant or his counsel to detect his presence. It is further noteworthy that defense counsel made no proffer as to what the testimony of the witness would have been had he been allowed to testify. If he was another alibi witness, his testimony would have been merely cumulative. If he had substantive information concerning the charges against the appellant, counsel should have proffered to the trial court what that evidence would have been so that we would have it before us on review. Under all the circumstances, however, to hold that the trial court abused its discretion in refusing to allow Christian to testify would make the sequestration rule a nullity.

We hold that the court acted within the limits of its sound discretion.

V.

Finally, appellant contends that the trial court abused its discretion by permitting the State to introduce rebuttal evidence which should have been offered, if at all, in the State’s case-in-chief.

The general rule as to when rebuttal evidence may be offered was laid down by the Maryland Court of Appeals in Mayson v. State, supra:

“Ordinarily, an orderly conducted criminal trial anticipates the State adducing all of its evidence in chief and resting its case. The defense follows by producing its evidence tending to establish the accused’s non-culpability, which includes the contradiction or rebuttal of the evidence offered by the State. Then the State is afforded an opportunity to produce its rebuttal evidence.”

Mayson defined rebuttal evidence as any competent evidence which explains — or is a direct reply to or a contradiction of — any new matter that has been brought into the case by the defense.

This Court recently had before it the companion cases of Hepple v. State and Jones v. State, 31 Md. App. 525, 358 A. 2d 283 (1976), cert. granted September 15, 1976, in which Chief Judge Orth, in reviewing the law on the admissibility of rebuttal evidence stated that the initial decision as to the admissibility of such evidence rests within the sound discretion of the trial court. An appellate court will reverse only, 1) if it finds the admission of the evidence to be manifest error and 2) if upon its own independent review of the record, the Court is unable to declare its belief, beyond a reasonable doubt, that the admission of the evidence in no way influenced the verdict.

Our review of the record convinces us that there was no manifest error in the admission of the disputed testimony as rebuttal: Before the rebuttal witness was called, the State proferred that the witness would contradict the defendant’s testimony that he had been arrested on the evening of December 3rd, after having left a theater and gone home. Counsel’s objection was addressed primarily to the circumstances of the arrest rather than to the rebuttal testimony. Mr. Azrael said:

“I think the damaging part of it is that the Defendant was hiding in a closet when he was arrested. I don’t think that is relating to anything material in the case, it’s highly prejudicial. If they want to say he was arrested on the 4th, all right, but to go into all this, I would say the Defense would have to object.”

The court permitted the rebuttal witness, a police officer, to be called, and he did in fact contradict the appellant’s version of the date, time, and place of the arrest; he testified that the arrest occurred at 430 East Lafayette Avenue during the daylight hours of December 4, 1974. At the conclusion of the officer’s testimony, appellant was recalled to the stand by his counsel and explained that he was hiding in the closet “because of my previous record and I thought he was going to lock me up for something I ain’t did.”

We have carefully reviewed the record and find no abuse of the trial court’s discretion in allowing the rebuttal evidence.

Judgments affirmed.

      . See Simmons v. State, 165 Md. 155, 167 A. 60 (1933), where the Court approved the joinder of 18 counts charging the defendant with larceny or obtaining funds by false pretenses from a bank, the transactions extending over a nine month period. At page 165, the Court held: “So, the prevailing practice is that not only counts for misdemeanors may be joined, but, also, counts for several felonies, and, likewise, counts for felony and misdemeanor, subject to the qualification that, generally, the different counts present different aspects of the evidence of the same offense or, if not of the same offense, the offenses charged are of the same general nature and permit the same mode of trial.”

      . See Soles v. State, 16 Md. App. 656, 299 A. 2d 502; Witcher v. State, 17 Md. App. 426, 302 A. 2d 701 (1973).

      . since appointed to the Court of Appeals of Maryland.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    JOHN FRANKLIN DAVIS, JR. v. MARY LOUISE DAVIS
    [No. 110,
    September Term, 1976.]

      Decided October 8, 1976.

      The cause was argued before Thompson, Powers and Melvin, JJ.

      John R. Foley for appellant.

      A, J. D. Schmidt, with whom was Judson R. Wood on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

This case involves the custody of Katherine Leigh Davis, (Leigh), born March 21, 1968, the youngest child of John Franklin Davis, Jr., the appellant, and Mary Louise Davis, the appellee. On September 25,1974, Mr. Davis filed a suit in the Circuit Court for Montgomery County for a divorce a vinculo matrimonii on the grounds of adultery and asked for custody of the three minor children of the parties. In her answer and in a cross-bill the appellee sought custody of the three children. The chancellor awarded Mr. Davis a divorce as requested, gave him custody of the two older children of the parties and dismissed the appellee’s cross-bill. Mrs. Davis was given custody of Leigh. Mr. Davis has appealed; Mrs. Davis did not; thus, the only question before the Court is the custody of Leigh.

The parties were married on September 26,1958, and lived in Montgomery County, Maryland, until the date of trial, December 11, 1975. Three children were born to the parties: John Franklin Davis, III, now age 17, Mary Jane Davis, now age 15, and Leigh, now age 8. While their marriage appears to have been anything but harmonious, at least during the last year, the parties lived together until they separated on January 31, 1974. During this period Mr. Davis complained to his wife as to the amount of her drinking and her occasionally returning home in the early hours of the morning. On January 31, 1974, the appellee, Mary Louise Davis, left the family home and took an apartment. Her youngest daughter accompanied her but apparently the two older children declined to do so. There was evidence that after the separation and prior to the trial Mrs. Davis held a number of different jobs but always, was careful to arrange that her daughter was properly cared for by neighbors or other baby sitters, including in some instances her older children. The older children visited her with some frequency and the youngest daughter spent Friday nights and Saturdays with Mr. Davis. The relationship of each parent will all the children was described as good. The relationship between the children also appears to be good. Mr. Davis has made arrangements for a neighbor and his older children to take care of Leigh from the time she returns from school until he returns from work, in the event he should be awarded custody. Mr. Davis lives in a nice four-bedroom dwelling. Mrs. Davis lives in a nice two-bedroom apartment.

There was strong evidence that Mrs. Davis had committed adultery with three different men on many occasions from June of 1974 until November 30, 1974, more than two months after the bill of complaint had been filed in these proceedings. Specifically the following situations were observed:

1) Prior to June, 1974, Mrs. Davis was observed in the company of William Katzenberger numerous times including several at the New Yorker Restaurant in Laurel;
2) On June 26, 1974, Mrs. Davis was observed entering Katzenberger’s apartment building at 4:45 p.m. from which they exited at 6:08 p.m.
3) On June 27, 1974, Mrs. Davis was observed “hugging and kissing” Ray Giovannoni in the latter’s automobile parked outside of the Side Door Restaurant in Gaithersburg;
4) On July 2, 1974, at approximately 6:00 p.m. Mrs. Davis was observed kissing Katzenberger in a service station;
5) On July 3, 1974, Mrs. Davis was observed entering her apartment at approximately 12:46 p.m. from which she exited at 1:31 p.m. followed by Katzenberger at 1:36 p.m.;
6) On July 18, 1974, Mrs. Davis and Giovannoni were observed leaving the Side Door Restaurant shortly after midnight, entering the latter’s automobile, driving to a dark area in the rear of the parking lot where they parked for 10 minutes before returning to the bar;
7) On July 24, 1974, Mrs. Davis and Giovannoni were observed entering Giovannoni’s apartment building at 11:50 p.m., the lights went off at 1:05 a.m., and Mrs. Davis left the building at 6:45 a.m.;
8) On September 1, 1974, Mrs. Davis and Giovannoni were observed in the latter’s apartment at midnight preparing for a party which was still going on at 3:30 a.m.;
9) On September 4, 1974, Mrs. Davis was observed leaving the Washington Country Club at 8:25 p.m., arm in arm with Dale Thompson, embracing and kissing passionately after which they went to Thompson’s home in Colesville where they stayed until 12:35 a.m.;
10) On September 9, 1974, Mrs. Davis arrived at Thompson’s home at midnight, Thompson arrived at 1:30 a.m., at 2:30 a.m. the lights on the first floor went out and the lights on the second floor went on, at 3:00 a.m. all lights went out until Mrs. Davis left the home at 4:30 a.m.;
11) On October 26, 1974, Mrs. Davis and Giovannoni arrived at the latter’s apartment at 2:00 a.m. and at 9:30 a.m. Mrs. Davis left;
12) On November 30, 1974, Mrs. Davis and Giovannoni arrived at his apartment at 2:30 a.m. and at 9:30 a.m. Mrs. Davis left.

While there is no evidence that the appellee committed adultery at a location where Leigh was present, there was evidence that on occasions Mrs. Davis has taken her daughter out in the company of at least two of these men. Mrs. Davis did not in the testimony, either at the custody hearing nor at the earlier trial, discuss her adulterous relationships in any manner. The chancellor with reference to the adulteries made no detailed findings of fact but stated that the “evidence certainly was overwhelming in connection with her adultery.” The court found that Mr. Davis provided a more than adequate home for the two older children and that they seemed to be doing well with him. He found that Mrs. Davis had been providing an adequate home for the youngest child, Leigh. Stating that he was aware of the presumptions of unfitness that arise from adulteries, the chancellor felt that the best interest of the child was continuing the present situation rather than changing custody. The chancellor did not spell specific visitation rights but gave each party to the proceedings the reasonable rights of visitation with the children because the parties had themselves worked out these rights in a satisfactory manner.

Inasmuch as the chancellor’s opinion after the custody trial was very brief, we will quote it in full:

“Gentlemen, I have, of course, heard all of the testimony in connection with the original trial of this case, which consumed a couple of days, and I have had the benefit of reviewing that transcript, and I have had the benefit of our custodial investigation in connection with the three children.
“It’s obvious to me that Mr. Davis can and has provided an adequate or even more than adequate home for the two older children, and certainly on the basis of their latest report cards, and the custodial investigation report they are doing well with him.
“It’s equally obvious to me that Mrs. Davis is able to and has been providing an adequate home for the youngest daughter, Leigh. It’s quite obvious to me that she would be unable to remain where she is if the Court awarded her custody of all three of the children, but I don’t intend to do that, so it’s not necessary to really even discuss that aspect of the case.
“The primary concern of the Court in this particular case has been the younger child, Leigh, who has been with her mother, and as to whether that should be at least a temporary, permanent arrangement, or whether the custody should be changed to the father.
“Being aware of the law in reference to the adultery of the mother and the presumptions that arise from it, at the same time we must consider that the law in the State of Maryland is, and has been for some time, that the best interests of the child is the paramount consideration that the Court should consider.
“The present situation, obviously whenever a father and mother are divorced, and children are separated, is not very desirable. At the same time, for a substantial period of time, well in excess, of a year, the present arrangement has been in effect, and has apparently been working. That is not to say that if Mr. Davis had had Leigh during that period of time that she might not have made the same progress in school, and in her upbringing as she has with her mother. At the same time, the Court, based on all the information in this case, is reluctant at this point to make any change in the custody of Leigh, because I think that that would not be in her best interests.
“Now, I am mindful though of the fact that, and as you had indicated, Mr. Foley, this is something that the Court has the right to review, and I would certainly expect to review it very carefully if at any time any information was brought to the Court’s attention that she was, Mrs. Davis was conducting herself in any way that made it inadvisable to keep the custody of Leigh with her.”

It hardly requires citation of authority to state the cardinal rule in custody cases is the welfare of the child. The rule is mentioned in every such case. In Sullivan v. Auslaender, 12 Md. App. 1, 3-5, 276 A. 2d 698 (1971), this Court carefully reviewed the decisions of the Court of Appeals and determined that in making this determination an appellate court is not bound by the clearly erroneous rule, Md. Rule 1086, but must exercise its own good judgment as to whether the conclusion of the chancellor is the best one. In making this determination we, of course, accept the chancellor’s factual findings but not necessarily his conclusions. Sartoph v. Sartoph, 31 Md. App. 58, 64, 354 A. 2d 467 (1976). To guide us in making determinations a number of rules have been developed, one of which is that the custody of a child should not be disturbed unless there is strong reason affecting the welfare of the child. Krebs v. Krebs, 255 Md. 264, 257 A. 2d 428 (1969), Vernon v. Vernon, 30 Md. App. 564, 354 A. 2d 222 (1976). Split custody is frowned upon. Bryce v. Bryce, 229 Md. 16, 181 A. 2d 455 (1962). Another rule is that an adulterous parent is presumed to be unfit, Palmer v. Palmer, 238 Md. 327, 331, 207 A. 2d 481, 483 (1965); Hild v. Hild, 221 Md. 349, 358, 157 A. 2d 442, 447 (1960); Pangle v. Pangle, 134 Md. 166, 170, 106 A. 337, 338 (1919); Widdoes v. Widdoes, 12 Md. App. 225, 235, 278 A. 2d 100, 105 (1971). This presumption of unfitness can be overcome by showing that the adulterous party has repented, has terminated the relationship and has changed his or her ways so that there is little likelihood of a reoccurrence of the past conduct. See for examples: Neuwiller v. Neuwiller, 257 Md. 285, 262 A. 2d 736 (1970); Kauten v. Kauten, 257 Md. 10, 261 A. 2d 759 (1970); Sartoph v. Sartoph, supra; Powers v. Hadden, 30 Md. App. 577, 353 A. 2d 641 (1976). It is the rare case in Maryland that has awarded custody to an adulterous parent, absent a showing that the wayward conduct had terminated. In each case there are most unusual circumstances. In the instant case the appellee argues that inasmuch as the last adultery shown by the record occurred in November of 1974 and the hearing as to custody did not occur until December 11,1975, this alone showed that the relationships have been terminated. We do not view the evidence in that manner. The appellant was granted his divorce on July 7, 1975, and the question of custody was reserved until after the hearing on December 11, 1975, the final order having been signed on January 5, 1976. It seems apparent to us that the appellant after having overwhelmingly demonstrated the wife’s wayward manner could rely on the fact that it would be up to her to show a change in the course of her conduct; indeed, the cases place such a burden on the adulterous parent. See Widdoes v. Widdoes, supra at 237, 238. We note that in her testimony the appellee failed to discuss in any manner her adulteries or any change in her way of life. In a situation as we have here where the past indiscretions of the appellee are flagrant it became necessary for her to demonstrate that the opportunity and privilege of raising Leigh were more important than this type of conduct. A showing that she had repented and there was little likelihood of a recurrence of these actions was mandatory. We, therefore, find that the chancellor was erroneous in his determination that the best interest of the child required that custody be continued in the mother. As has often been pointed out, award of custody of a child is not to punish the errant parent but simply to look after the best interest of the child. In applying the rule that the custody of a child should not be disturbed, the chancellor avoided disturbing the relationship between the child and mother which had been long continued; however, he failed to consider the long term effect of having a child taught her sexual morals by an unrepentant, flagrantly adulterous and promiscuous parent. We think the long term effect of the latter is more important to the child than the temporary trauma which will be caused by her separation from her mother. We leave it to the parties to work out their own visitation rights which, of course, the chancellor can assure if such an agreement is not possible.

Order awarding custody of Katherine Leigh Davis to appellee reversed and custody awarded to appellant.

Appellant to pay the costs.

      . In view of our decision we will not need to treat a second question raised by Mr. Davis.

      . In Pratt v. Pratt, 245 Md. 716, 228 A. 2d 611 (1967), the Court did not expressly find that the adulteress had repented her ways but the evidence revealed that a thirteen year old daughter had expressed an intense dislike for her father and indicated that she would refuse to live with him under any circumstances. Custody of a two year old son was also granted to the wife because (1) he had always been properly cared for by her, (2) of the policy against dividing custody, and (3) the husband failed to substantiate that he and his relatives could provide a good home. In Orndoff v. Orndoff, 252 Md. 519, 250 A. 2d 627 (1969), it was found that the evidence of the adultery was unpersuasive but the Court of Appeals went on to say that even if the illicit conduct had been established the lower court would not have been in error in finding for the wife. The lower court had found, however, that the appellant’s petition had been motivated by a desire to punish the mother for her transgressions rather than out of love for the child. In Mullinix v. Mullinix, 12 Md. App. 402, 278 A. 2d 674 (1971), the Court found that the chancellor’s decree prohibiting contact between the adulteress and her paramour insured that she would change her ways.


author: Lowe, J.,

text:
    WINSTON A. MULCHANSINGH v. COLUMBIA MANAGEMENT INC.
    [No. 116,
    September Term, 1976.]

      Decided October 8, 1976.

    The cause was argued before Morton, Davidson and Lowe, JJ.

      William T. Glasgow for appellant.
    No appearance or brief for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The question before us is whether a party in landlord-tenant proceedings is entitled to a jury trial, and if so, under what circumstances. The answer seems clearly set forth by the Court of Appeals in Bringe v. Collins, 274 Md. 338.

The issue arose when Columbia Management Inc. (landlord) filed a Complaint in Summary Ejectment in the District Court of Maryland for Howard County against Winston A. Mulchansingh (tenant), for five months unpaid rental of $496.35 per month, a percentage of the rent as provided by the lease and late charges of $585.00, for a total of $3802.11. The complaint was on the form provided by the District Court which

“. .. prays by warrant to have again and repossess the premises, together with judgment for the amount of rent due and costs.”

Tenant replied with a Notice of Intention to Defend and a Jury Demand, pursuant to Md. District Rules 302 and 343. The case was then transferred to the Circuit Court for Howard County. When the case came on for hearing, the judge decided sua sponte that, based on the case of Greenbelt Consumer v. Acme Mkts., 272 Md. 222, the circuit court lacked jurisdiction to hear the ejectment proceedings:

“ . .. And looking over the files, gentlemen, I find that in Law No. A-7586 that this is a complaint in Summary Ejectment whereby the landlord seeks to repossess his premises and then obtain a judgment of amount of rent due. And it is my opinion that under the holding of Greenbelt Consumer v. Acme Markets decided in 1974, and reported in 272 Md. 222 that this is a proceeding to repossess the premises, it’s a landlord-tenant proceeding, and that the District Court of Maryland has exclusive jurisdiction and this Court does not, and therefore this Court must return it to the District Court for a determination of that issue.”

In that case the landlord was not attempting to recover any property. The suit was brought in the district court by the landlord for $12,000 in accrued past due rent only. Following a verdict favorable to the landlord, the tenant appealed to the circuit court. The tenant argued that the district court was without jurisdiction to hear landlord’s claim because the claim exceeded the monetary jurisdiction of that court, as set forth in Cts. Art., § 4-401 (1). The landlord agreed that its claim exceeded the monetary limit imposed by § 4-401 (1) but contended that the district court had “exclusive original” jurisdiction in any action involving a landlord and a tenant pursuant to § 4-401 (4). These sections read as follows:

“§ 4-401. EXCLUSIVE ORIGINAL JURISDICTION.
Except as provided in 4-402, and subject to the venue provisions of Title 6,11 the District Court has exclusive original jurisdiction in:
(1) An action in contract or tort if the debt or damages claimed do not exceed $5,000;
(4) An action involving landlord and tenant, distraint, or forcible entry and detainer, regardless of the amount involved; ”.

The court reasoned that § 4-401 (4) was not intended to provide unlimited monetary jurisdiction in the district court, but rather that:

“ . .. the General Assembly intended to encompass within § 4-401 (4) only those possessory in rem or quasi in rem actions that provided a means by which a landlord might rapidly and inexpensively obtain repossession of his premises situated in this State or seek security for rent due from personalty located on the leasehold.
It follows from what we have said that the District Court of Maryland is without jurisdiction to render a judgment in excess of the $5,000 limit when it is instituted in a contract claim independent of one of the possessory actions to which we have already referred.” 272 Md. at 229-230.

The trial judge below, in the case at bar, extended the Greenbelt holding to mean that anytime a possessory action is filed with a contract and monetary claim, the district court has “exclusive” jurisdiction which, presumably, could not be ousted for any reason:

“(Court) And the way your action is framed, I would find it to be a landlord-tenant case and not just a simple suit for damages and that would, therefore, keep it within the exclusive jurisdiction of the District Court. If you want to sue just for the rent then I, I think it’s a different situation.”

The tenant argued that because the landlord’s monetary claim exceeded $500, he was entitled to a jury trial under § 4-402 (e) (1), which states that:

“In a civil action in which the amount in controversy exceeds $500, a party may demand a jury trial pursuant to the Maryland District Rules.”

But the trial judge did not agree, despite the prefatory language of § 4-401. He apparently believed that the concluding language of § 4-401 (4) excepted it from § 4-402 (e) (1), and held that the tenant was not entitled to a jury trial:

“(Court) Well, you see, that’s where I’m disagreeing with both your interpretations. I don’t think it is, I think it’s an action to recover the property while, also, to seek a judgment for the amount of the rent due. And I find that to be an entirely different proceeding than merely sueing for rent. The main part of the action is to eject the, the — It’s entitled “Complaint in Summary Ejectment”. In other words, they want to throw the tenant out. And in that situation the District Court has exclusive jurisdiction regardless of the amount in controversy. That’s my opinion. Others may differ, an appellate court may, may find, may clarify the issue but I’m convinced of that situation.” (emphasis added).

An appellate court does differ. Indeed two of them appear to differ if our review of the cases in the Court of Appeals is correct. The reasoning of the very case upon which the judge relied, in our view, precludes the result at which he arrived.

In Greenbelt Judge Digges meticulously analyzed possible interpretations of § 4-401 (4). One contention made to that Court was that any action involving a landlord and tenant “relationship”, regardless of the amount sued for, must be brought in district court. This suggestion was discarded as completely unreasonable because it would make the district courts’ monetary jurisdiction in those cases “practically limitless.” Judge Digges concluded that:

“This alternative must be rejected as ‘we should assume that the legislative body intended to reach a reasonable, rather than an unreasonable result . . . .’ Swarthmore Co. v. Kaestner, 258 Md. 517, 527, 266 A. 2d 341 (1970).” 272 Md. at 228-229.

If we were to follow the reasoning of the trial judge here and hold that a suit combining a possessory action with a monetary claim “regardless of the amount in controversy” must be brought in district court, we would effect the unreasonable result rejected by Judge Digges.

Soon after Greenbelt the Court of Appeals was again confronted with a jurisdiction question relative to landlord-tenant cases in Bringe v. Collins, 274 Md. 338. The issue involved there was one more nearly related to our own, i.e., the right of a jury trial in a landlord-tenant case. The facts of that case differ, however, in that in Bringe the suit was a possessory action alone, not coupled with a monetary claim. The question decided was primarily a constitutional one written in the light of Pernell v. Southall Realty, 416 U.S. 363.

In Bringe Judge Eldridge wrote for the Court of Appeals that, while the Seventh and Fourteenth Amendments to the United States Constitution did not entitle the petitioner to a jury trial in a landlord-tenant action in Maryland courts, Art. XV, § 6 of the Md. Const, did. Section 6 provides:

“The right of trial by Jury of all issues of fact in civil proceedings in the several Courts of Law in this State, where the controversy exceeds the sum of five hundred dollars, shall be inviolably preserved.”

Holding that this clearly applied to a landlord-tenant action, Judge Eldridge explained:

“For a party in a landlord-tenant action to be entitled to a jury trial, there must either be a claim for money damages over $500.00 or a claim that the value of the right to possession exceeds $500.00.”
274 Md. at 347.

We, therefore, hold that when a landlord brings a monetary claim for rent in excess of $500.00 and a possessory claim in district court, the tenant defending is entitled to demand a jury trial. It is clear from the use of the disjunctive in Judge Eldridge’s statement that both a monetary claim over $500.00 and an allegation that the right to possession exceeds $500.00 is not required.

Appellant is entitled to his day in court before a jury of his peers.

Judgment reversed.

Case remanded to the Circuit Court for Howard County for trial in compliance with this opinion. Costs to be paid by appellee.

      . To be heard were a Motion for Summary Judgment, a Jury Demand, a Motion for Consolidation of a suit by tenant against the landlord and a Motion Ne Recipiatur.

      . The venue provisions of Title 6 are not relevant in this case.

      . It is dear that the Legislature enacted the provision in § 4402 (e) to comply with the § 6 of Art. XV of the Md. Const. Ironically, that apparent exercise of caution has caused frequent misunderstandings.


author: Powers, J.,

text:
    NU CAR CARRIERS, INC. et al. v. WILLIAM RANDALL EVERETT et al.
    [No. 131,
    September Term, 1976.]

      Decided October 8, 1976.

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

      Donald L. Merriman and Robert W. Baker, Jr., for appellants.

      Jerome J. Seidenman for appellees.
   Powers, J.,

delivered the opinion of the Court.

The Annotated Code of Maryland, Courts Article, § 12-301, provides in part that, “ * * * a party may appeal from a final judgment entered in a civil * * * case by a circuit court.” The term “final judgment” is defined in § 12-101 (f) to mean “ * * * a judgment, decree, sentence, order, determination, decision, or other action by a court, including an orphans’ court, from which an appeal, application for leave to appeal, or petition for certiorari may be taken.” The apparent dilemma created by defining a phrase in terms of the thing being defined is explained by a Revisor’s Note under subsection (f). It says, “This definition does not attempt to specify what is an appealable final order. That is left to case law, as at present.”

The case law has been consistent for well over 100 years. In Hazlehurst v. Morris, 28 Md. 67 (1868), the Court of Appeals said, at 71:

“The law has been clearly settled in this State, that ‘no appeal can be prosecuted to this court until a decision has been had in the court below, which is so far final, as to settle and conclude the rights of the party involved in the action, or denying to the party the means of further prosecuting or defending the suit. When the proceedings below shall be terminated, an appeal will then lie, and all the errors of the court below, in the progress of the cause, will be proper subjects for complaint of the party, and for the correction of this court.’ Boteler v. State, 7 G. & J. 112; Welsh v. Davis, 7 Gill, 366; Green v. Hamilton, 16 Md. 328. The order, passed in the court below, did not settle and conclude the rights involved in the cause; nor was it of such a character as to deny to the party the means of defending the suit, and was not, therefore, so far final as to be a proper subject of appeal. This appeal must, therefore, be dismissed.”

In Brooks v. Ford Motor Credit Co., 261 Md. 278, 274 A. 2d 345 (1971), the Court of Appeals said, at 280:

“We have consistently held that appeals will lie only from final judgments which settle the rights of the parties or conclude the cause, Tvardek v. Tvardek, 257 Md. 88, 261 A. 2d 762 (1970); Hillyard Constr. Co. v. Lynch, 256 Md. 375, 260 A. 2d 316 (1970).”

William Randall Everett filed a suit in the Superior Court of Baltimore City against Nu Car Carriers, Inc. and its driver, Melvin Lloyd Lamb, Jr., claiming damages for personal injuries sustained in a motor vehicle collision. Everett’s wife joined with her husband in a separate count in which they jointly claimed injury to their marital relationship.

Trial of the case was held before a jury and Judge James W. Murphy in the Superior Court of Baltimore City, beginning 13 November 1975 and ending on 18 November 1975 when Judge Murphy declared a mistrial after the jury was unable to agree.

At the close of all of the evidence the defendants, Nu Car Carriers, Inc. and Lamb, had moved for a directed verdict. That motion was denied. They filed a timely motion for judgment n.o.v., Maryland Rule 563, § a.l. and § b.2. That motion was heard, and on 8 January 1976 it was denied. The following day the court entered an order setting the case for trial. Nu Car Carriers, Inc. and Lamb entered an appeal to this Court “with respect to the denial of Defendants’ Motion for Judgment N.O.V.”

Appellants and appellees briefed and argued the case here on the merits. At argument we raised the question of whether there was an appealable final judgment. The parties were given leave to file memoranda on that question. Appellants have filed a letter memorandum. Appellees have waived a response.

The refusal of the trial court to enter a judgment in favor of the defendants was not the equivalent of a judgment against the defendants. The case remained open on the docket, pending a retrial. The court passed no order which settled the rights of the parties or concluded the cause. There simply was no judgment for or against any party.

Maryland Rule 563 does not create a right of appeal greater than those granted in Code, Courts Art., §§ 12-301 and 12-303. The Rule merely governs the filing and disposition of post trial motions for judgment notwithstanding the verdict returned by a jury, or its failure to return a verdict. Such a motion may be made only to bring up for reconsideration, a motion for a directed verdict, made at the close of all of the evidence, and at that time either denied or reserved by the trial court. The delineation in § c. 2. of Rule 563 of what the appellate court may do when a judgment is reversed on appeal for refusal of a motion for judgment n.o.v. is, by its own clear words, premised upon the reversal of a judgment entered in the trial court.

In Snyder v. Cearfoss, 186 Md. 360, 46 A. 2d 607 (1946), the posture of which was somewhat different from the case now before us, the Court of Appeals dismissed an appeal by disappointed plaintiffs after the trial court had set aside jury verdicts in their favor, and granted a new trial. The lower court had also denied defendant’s motion for judgment n.o.v., although that ruling does not appear to have been an issue in the appeal. The Court said, at 366:

“We think the motion to dismiss the appeal must be granted. There has been no final judgment, and until final judgment the appeal is premature.”

Directly controlling the present case, however, is Feinberg v. Geo. Wash. Cemetery, 233 Md. 440, 197 A. 2d 147 (1964). After a jury verdict for the plaintiff below the defendants’ motion for a new trial was granted, but their motion for judgment n.o.v. was denied. They appealed. The Court of Appeals said, at 441:

“Since there is no final judgment to appeal from, the motion to dismiss the appeal must be granted. Snyder v. Cearfoss, 186 Md. 360, 366; Code (1957), Art. 5, sec. 1. In the absence of a final judgment there can be no review of the ruling on the motion N.O.V. Sears v. B. & O. Railroad, 219 Md. 118, 122.”

We have no jurisdiction to entertain the merits of this appeal. In Blocher v. Harlow, 268 Md. 571, 303 A. 2d 395 (1973), the Court of Appeals, holding the appeal to be premature under Maryland Rule 605 a, said, at 578:

“The order appealed from was not a final order nor does it fall within the category of interlocutory orders from which an appeal may be maintained. Therefore, the appeal must be dismissed. [Citations omitted]. It is elementary that parties may not confer appellate jurisdiction by consent upon this Court or the Court of Special Appeals. Accordingly, we shall remand the case to the Court of Special Appeals for the purpose of entering an order dismissing the appeal.”

Appeal dismissed.

Appellants to pay costs.


author: Gilbert, C. J.,

text:
    KENDALL A. YOUNG v. CITIES SERVICE OIL COMPANY, etc.
    [No. 135,
    September Term, 1976.]

      Decided October 11, 1976.

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

      William F. Mosner for appellant.

      T. Bruce Hanley, with whom were Wright & Parks on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

Distressed by a decree of the Circuit Court for Baltimore County ordering him specifically to convey real property to Cities Service Oil Company (Cities) and charging rental paid to him, from the time of the exercise of an option by Cities to the date of trial, as an adjustment in the purchase price, Kendall Young has appealed to this Court.

The instant litigation arose out of a lease entered into between Young and Cities in August, 1957. The lease was for a term of twenty (20) years and called for the payment to Young of a fixed monthly rental “... plus two cents ($.02) per gallon on each gallon of gasoline delivered to the underground tanks of the demised premises over and above the amount of 27,500 gallons per month.”

Aside from Young’s claim that he was unable to ascertain the correct “gallonage” payment due him, the bone of contention in this case is embodied in number paragraph 13 of the lease. That section provides:

“Tenant shall have the option during the term of this lease, or any extension or renewal thereof, to purchase the demised premises and all buildings, improvements, fixtures, tanks and equipment thereon owned by the Landlord for the sum of One Hundred Thousand and No/100....... ($100,000.00) Dollars payable as follows, $10,000.00 on notice of intention to exercise this option and $90,000.00 on delivery of deed. This option shall be exercised by the Tenant giving to the Landlord written notice of its intention to purchase, and title shall be closed at the earliest date subsequent to such notice after Tenant shall have completed its examination of title and found same to be satisfactory. On closing of title the Landlord shall execute and deliver to the Tenant a full covenant and warranty deed conveying to the Tenant or its nominee, in fee simple, free and clear of all liens, encumbrances and restrictions, the lands, buildings, improvements, fixtures, tanks and equipment herein demised. If prior to the exercise of the option herein provided, any portion of the demised premises shall be taken by any public or private authority having the right to take same by condemnation or eminent domain, such option or purchase shall thereafter apply to the remaining portion of the demised premises, except that the purchase price shall then be the amount remaining after deducting the amount awarded in such condemnation proceeding from the amount of the purchase price herein before provided and the down payment shall be reduced proportionately.”

Cities, under date of September 10, 1974, wrote a letter to Young that it was exercising its option and purportedly enclosed the specified $10,000 deposit. Young acknowledged receipt of the letter but steadfastly denied that the $10,000 check was ever transmitted to him. In any event, Young, on October 13, 1974, responded to Cities’ letter of September 27, 1974, and he complained regarding the exercise of the option. At the same time, Young demanded verification of the amount of gasoline actually delivered to the demised premises.

Cities notified Young by letter dated January 6, 1975, of the date and place of settlement, and in its letter, asserted it was entitled to an adjustment of $3,340. That sum represented a payment to Young as the result of the State’s widening of Maryland State Highway 26. Needless to say, Young did not settle, and Cities, on February 7, 1975, filed a “Suit for Specific Performance.”

During the period from September 10, 1974 through November, 1975, Cities continued to pay rental to Young. In its suit, Cities prayed reimbursement “for all rent paid by . .. [it] to .. . [Young] subsequent to September 10,1974.”

The chancellor, as we have previously indicated, decided that Cities was, indeed, entitled to specific performance, and he further decreed that the rental payments made to Young from October 1, 1974, aggregating $15,587.02, should be deducted from the purchase price.

Young poses to this Court two questions, the answer to which he suggests, collectively or individually, require reversal. He asks:

“1. Does the record reflect that the option was properly exercised by tender of the required payment of $10,000.00 to Young when the notice of intent was given?
2. If the option was properly exercised, is Cities entitled to a credit for the rents that it voluntarily paid to Young from October 1, 1974, until the time of trial? ”

Young’s first question is easily answered; the second, however, is not so readily resolved.

I.

The record reflects that Young, by his own admission, received Cities’ letter of September 10, 1974, although he denied receipt of the $10,000 check. Notwithstanding that the check was not, as he says, enclosed, he did not point that out in his letter of October 13, 1974 to Cities. In fact, he did not even mention it, although its absence would certainly have been of some material significance. The question put to us is answered, not by what we may or may not have concluded from the same factual presentation, but rather the reasonableness of the judge’s findings, not the rightness. Snowden v. City Council of Balto., 224 Md. 443, 448, 168 A. 2d 390, 392 (1961). This is so because we may have drawn different inferences from the evidence, but that is not to say that the trial judge erred in his conclusions. He had the opportunity, not afforded us, of observing the witness’s demeanor on the stand, assessing his credibility, and determining how much weight to assign to the witness’s narration.

The chancellor found as a fact that the $10,000 check was received by Young, and we think that based upon the evidence as recounted above, together with rational inferences properly drawable therefrom, his finding of fact was not clearly erroneous. Md. Rule 1086.

Young’s second and obviously alternative issue is bimanous. The one hand poses the question whether Cities was obligated to pay rent after the exercise of its option. The other hand, to which we need only answer if the first response is negative, asks if, having voluntarily undertaken to make rental payments, Cities may recover the rents so paid?

For the reasons set forth infra, we are required to respond to both questions.

The lease between Cities and Young is silent as to the treatment of the rental by the parties once the option to purchase was invoked. The courts, in such a situation, would ordinarily apply the rule that has evolved out of similar circumstances. The general view with respect to the effect upon rental after the exercise of an option to buy is stated in 3 G. Thompson, Commentaries on the Modern Law of Real Property § 1155 (1959 Replacement). [Hereinafter cited as Thompson on Real Property.] There it is said:

“If the lessee exercises his right to purchase within the time given by the lease, he then becomes an occupant of the premises as owner, subject to his compliance with the contract, which can be enforced by the lessor. Upon such acceptance the relationship of lessor-lessee becomes that of vendor-vendee.” (Footnotes omitted).

The same source concludes his discussion of the subject with the statement:

“When the lessee exercises his right to purchase within the time given by the lease, the relation of landlord and tenant ceases and that of vendor and purchaser arises, and equitable title passes to the vendee.” (Footnotes omitted).

1 American Law of Property § 3.84 (1952 ed.) contains a concurring standpoint, stating:

“When the tenant exercises his option to purchase the property, it is said that the relation of landlord and tenant ends and the relation of vendor and purchaser is created. The lessor may not thereafter avoid his duty to convey by declaring a forfeiture of the lease, and the lessee is no longer liable for rent. (Footnotes omitted) (Emphasis added).

While we have been directed to no Maryland case that has considered the issue here presented, the rule has been followed in United States v. Bethlehem Steel Company, 215 F. Supp. 62 (D. Md. 1962). In that case, Bethlehem ceased paying rent after it had asserted its right to purchase pursuant to the option contained in the lease with the government. The United States then brought a declaratory action to construe the contract and to recover rent. Judge Winter, in deciding the matter adversely to the government, wrote:

“There can be little question that if Bethlehem validly exercised its option . .., it would have ceased to be a tenant and would have become a contract purchaser without liability for further payment of rent, because its leasehold interest would have merged into the greater estate, 3 Thompson, Real Property (Perm. Ed. 1940) § 1332.” 215 F. Supp. at 70.

The Supreme Court of Illinois in Cities Service Oil Co. v. Viering, 404 Ill. 538, 89 N.E.2d 392, 13 A.L.R.2d 1448 (1949) held that:

“Where the relation of landlord and tenant exists under the terms of a written lease, containing an option to purchase which the lessee exercises, he is no longer in possession as a tenant, but his possession is that of vendee. (Bakaitis v. Fink, 340 Ill. 440, 172 NE 923, 51 C.J.S., Landlord and Tenant, § 82 (a).” 404 Ill. at 554, 89 N.E.2d at 402, 13 A.L.R.2d at 1460.

See also Cowart v. Prater, 247 Ala. 401, 24 So. 2d 753 (1946); Lewis v. Lockhart, 379 P. 2d 618 (Alaska, 1963); Capitol Land Co. v. Zorn, 134 Ind. App. 431, 184 N.E.2d 152 (1962); Gassert v. Anderson, 201 Minn. 515, 276 N. W. 808 (1937).

We hold that a lessor is not entitled to rent after the lessee has validly exercised his option to purchase unless there is an express agreement in the lease to the contrary. We, thus, align ourselves with the prevailing view of other courts which have considered the question.

Having so held, we now turn to whether monies mistakenly paid as rental may be recovered from the vendor.

It has long been held that monies paid under a mistake of fact may be recovered by the payor, but that monies paid under a mistake of law cannot be recovered. Oxenham v. Mitchell, 160 Md. 269, 153 A. 71 (1931); Helser v. State, 128 Md. 228, 97 A. 539 (1916); Baltimore v. Harvey, 118 Md. 275, 84 A. 487 (1912); Baker v. Baker, 94 Md. 627, 51 A. 566 (1902); Baltimore v. Hussey, 67 Md. 112, 9 A. 19 (1887); George’s Creek Coal Co. v. County Commr’s., 59 Md. 255 (1883); Morris v. Baltimore, 5 Gill 244 (Md. 1847); Baltimore v. Lefferman, 4 Gill 425, 45 Am. Dec. 145 (Md. 1846). The rule, while easy to articulate, is difficult to apply. One obstacle encountered in its application is that the distinction between law and fact is often murky. Frequently the two are mixed together.

In the case subjudice, however, much of the usual fog that settles over the issue has been lifted. The light shone through in the following exchange between the court and Cities’ counsel:

“The Court: You say you are entitled to rents; if you are entitled to rents why did you turn them over to Mr. Young?
[Counsel]: Well, Your. Honor, I think it’s fairly clear that the relationship between Mr. Young and Cities Service Oil Company has not been cordial, [] needless to say. Had Cities Service stopped paying rent in [sic] September 10, I am sure that Mr. Young would have brought action of ejectment against us, and may have had good grounds to do it.[]
The Court: Not if you validly exercised your option to purchase.
[Counsel]: Your Honor, Cities Service chose the legal remedies in this, and felt it would put them in a better position. We have not breached the elements of this lease; Mr. Young has breached the option to purchase, he is the wrongdoer in this case. We have tried to maintain ourselves and maintain the provisions of this lease throughout its tenure from 1957, as best Cities Service Oil Company could.” (Emphasis added).

That Cities elected to pay the rent as part of their choice of legal remedies is plain. They so chose in the erroneous belief that their failure to do so might lead to their ouster from the premises as a result of a successful ejectment proceeding initiated by Young. That Young could have filed an ejectment case against Cities does not give rise to the conclusion that he would have prevailed. In fact, as we have pointed out above, the prevailing law is to the contrary. Cities, a corporate being, is just like any other person, charged with knowledge of the law, and as so accountable, should have known of its vulnerability in making rental payments to Young.

Cities, seemingly recognizing the general rule that monies paid under a mistake of law may not be recovered, seeks to avoid that somewhat harsh principle by directing our attention to the Court’s quotation in Oxenham v. Mitchell, supra at 280, of 3 J.N. Pomeroy, A Treatise on Equity Jurisprudence, § 849 (4th ed. 1918) [hereinafter cited as Pomeroy] that:

“A private legal right, title, estate, interest, duty or liability is always a very complex conception. It necessarily depends so much upon conditions of fact, that it is difficult, if not impossible, to form a distinct notion of a private legal right, interest or liability separated from the facts in which it is involved and upon which it depends. Mistakes, therefore, of a person with respect to his own private legal rights and liabilities may be properly regarded — as in a great measure they really are — and may be dealt with as mistakes of fact. Courts have consistently felt and acted upon this view, though not always avowedly.”

The above quotation from Pomeroy, read literally obliterates the difference between mistakes of law and mistakes of fact unless the mistake is made between governments, or between a government (or its sub-division) and a private person. We do not interpret Oxenham to have altered the Maryland law that differentiates between mistakes of law and those of fact because all Oxenham, with respect thereto, did was point up the confusion that exists in the mistakeyof law-mistake of fact area.

Recently in Rapley v. Montgomery County, 261 Md. 98, 274 A. 2d 124 (1971), Judge Singley, speaking for the Court of Appeals opined:

“This Court has consistently recognized the rule that money paid under a mistake of law ordinarily cannot be recovered in an action at law, nor can recovery ordinarily be had in equity, in the absence of special circumstances. 1 Poe, Pleading and Practice § 119-120A at 145-50 (6th Ed. Sachs 1970). See, for example, Gross v. Stone, 173 Md. 653, 664, 197 A. 137 (1938); Oxenham v. Mitchell, 160 Md. 269, 153 A. 71 (1931); Louis Henri de Gallard, Prince de Bearn et Chalais v. Winans, 111 Md. 434, 477, 74 A. 626 (1909), and particularly our more recent decisions in Debelius Realty Co. v. Chassagne, 260 Md. 109, 271 A. 2d 527 (1970); and Baltimore & Annapolis RR Co. v. Carolina Coach Co., 206 Md. 237, 111 A. 2d 464 (1955), none of which involved the recovery of taxes.” 261 Md. at 106, 274 A. 2d at 128.

See also Brylawski v. Ellis, 237 Md. 556, 557-8, 207 A. 2d 224, 224-25 (1965) wherein the Court flatly stated it did not concur in Brylawski’s contention that the difference between mistakes of law and fact had largely disappeared in Maryland.

We discern in the case now before us an “absence of special circumstances” which would take the matter outside the scope of the general rule.

In 1 Poe’s Pleading and Practice § 119, (6th ed. H. M. Sachs, Jr., 1970) [hereinafter cited as Poe], the view is offered that:

“. .. [T]he eventual, no doubt most equitable and probably most practical rule that will at some time in the future be followed will be to allow recovery in assumpsit when monies are mistakenly paid without permitting the technical and very limited objection that they were paid solely by mistake of law.”

Whether Mr. Sach’s prognostication will prove to be correct remains to be seen. The law of Maryland at the present time, however, is, as that author notes, to the contrary. 1 Poe § H9.

Cities’ voluntary payments to Young were in their own words an attempt to “put them [Cities] in a better position.” Patently, Cities made a calculated tactical decision which turned out to be wrong. Tactical mistakes in battle are paid for in casualties, but in civil litigation they are paid for in dollars.

We think Cities was not, under the circumstances of this case, entitled to recover the monies paid to Young as rental, inasmuch as the payments resulted from a mistake of law.

Decree affirmed in part, and reversed in part, and case remanded for the passage of a decree in accordance with this opinion.

Each party to pay his own costs.

      . The fixed rental for the first ten years was $415 per month, and thereafter it was $565 per month.

      . This letter is not part of the record.

      . During oral argument before this Court, counsel for appellant referred to a letter dated October 22, 1974, from Cities to Young. Although it is printed in Appellant’s Brief and Appendix, the record does not reflect that it was entered into evidence. Hence, we do not consider it. Community Realty Co. v. Siskos, 31 Md. App. 99, 354 A. 2d 181 (1976); Scott and Wimbrow, Inc. v. Calwell, 31 Md. App. 1, 354 A. 2d 463 (1976).

      . The issue of the $3,340 was not litigated in the instant case but was reserved for future action between the parties. Young maintained that the leased premises were not affected by the road widening, and the trial judge felt the description too insufficient to decide the question. A sum of $4,125 was ordered held in escrow pending disposition of Cities’ claim to all or part of the monies paid by the State to Young.

      . This reasoning is grounded on the treatment of the option to purchase as “... a continuing offer to sell, to which the notice of the election to purchase is an acceptance, and the two constitute a completed contract of sale as of the date of the notice.” 3 Thompson on Real Property § 1155 (1959 Replacement).

      . Judge Winter, in reaching his decision, also relied on Cities Service Oil Co. v. Viering, supra; Master v. Roberts, 244 Pa. 342, 90 A. 735 (1914); Knerr v. Bradley, 105 Pa. 190 (1884); 1 American Law of Property, § 3.84 (1952 ed.).

      . The record amply supports counsel’s view of the relationship between the parties.

      . But see Cities Service Oil Co. v. Viering, supra.

      . The entire concept of the distinction between mistakes of law and fact first appeared in Bilbie v. Lumley, 2 East 469 (1802).


text:
    GREAT AMERICAN INSURANCE CO. et al. v. JOHN L. HAVENNER
    [No. 140,
    September Term, 1976.]

      Decided October 11, 1976.

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

      Edward J. Petrick, with whom were Robert W. Fox and Rollins, Smalkin, Weston, Richards & Mackie on the brief, for appellants.

      AlanM. Perlman for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The question asked by this appeal is whether an employer-insurer can appeal a decision of the Workmen’s Compensation Commission awarding a temporary total disability to the claimant. Phrased another way, is an award of temporary total disability a “finál” order within the meaning of Md. Rule B1 a?

Before launching into our discussion of the problem, a brief recitation of the factual predicate out of which it arises is helpful.

During the course of his employment by Great American Insurance Company, one of the appellants, the appellee, John L. Havenner, was injured. The mishap occurred on February 24,1972 when Havenner “slipped on snow while on inspection tour,” as a “safety specialist” for his employer. By its “Award of Compensation” dated September 8, 1972, the Commission ordered that Havenner be paid temporary total disability commencing March 13,1972.

As a result of an alleged failure of the employee’s insurance carrier to pay promptly the awarded compensation, the matter was set for hearing before a commissioner on May 7, 1974. The Commission, on May 21, 1974, “affirmed,” by stipulation between the parties, its prior order of September 8,1972.

Another hearing was held by the Commission on August 21, 1975. At that time, the issues before Commissioner William R. Hughes were (1) “Causal relationship,” and (2) “Nature and extent of disability.” Commissioner Hughes found “that the condition of . . . [Havenner’s] upper back is related to his accidental injury of February 24, 1972,” and that Havenner then was “still temporarily totally disabled.” The September 8,1972 order was again affirmed.

Perturbed by the Commissioner’s order of August, 1975, the employer-insurer noted an appeal to the Circuit Court for Prince George’s County asseverating that the Commission had “. . . not justly considered all of the facts . . . and . . . [had] misconstrued the law and facts applicable to this case; . . . .” The appeal to the circuit court was met with a “Motion Raising Preliminary Objection,” Md. Rule 323 (a) (1), challenging jurisdiction over the subject matter. The jurisdictional contest was grounded on the averment that the Commissioner’s order, sought to be appealed, was interlocutory “and not a final order.” The circuit court, largely on the basis of Big Vein Coal Co. v. Leasure, 192 Md. 435, 64 A. 2d 563 (1949), and Flying “A” Service Station v. Jordan, 17 Md. App. 477, 302 A. 2d 650 (1973), agreed with Havenner’s position.

Unquestionably, Md. Ann. Code art. 101, § 56 a confers the right upon a “. . . person feeling aggrieved by any decision of the Commission to appeal to the circuit court of the county . . . having jurisdiction over the place where the accident occurred or over the person appealing from such decision. ...” The Court of Appeals, however, has, by rule, made it perspicuous that only “final action” of the Commission is appealable. Md. Rule B1 a.

The obvious question then is what is meant by “final action” or “final order,” as that term is applied to appeals to the circuit court from decisions of the Workmen’s Compensation Commission.

In Liggett & Myers Tobacco Company v. Goslin, 163 Md. 74, 160 A. 804 (1932), the Court, referring to Md. Ann. Code art. 101, § 56 a said:

“. . . [T]he appeal allowed by the statute ... is not from the findings or opinion of the commission but from its ‘decision.’ And by ‘decision’ is obviously meant the order by which it disposes of the case.” 163 Md. at 78, 160 A. at 806.

This Court, in Flying “A ”Service Station v. Jordan, supra, stated:

“A decision of the Commission which an aggrieved party is entitled to have reviewed by a Court must be an operative order which has the effect of granting or denying some benefit under the Workmen’s Compensation law. Most often, such a decision is reached by giving effect to multiple findings, but it is the ultimate decision or order, not each individual finding, which is the basis for judicial review. Obviously, in a review of the correctness of a decision or order, each finding that contributed to the final result is examined, and one incorrect finding may make the result incorrect. But the appeal is from the result, rather than from each of its separate elements.” (Emphasis supplied). 17 Md. App. at 480-81, 302 A. 2d at 653.

Big Vein Coal Co., supra, was concerned with the appeal from an order of the Commission granting leave to file an amended claim. The Court of Appeals held that such an order was interlocutory and went on to restate the law that:

“The judgment must be final before this Court has any jurisdiction to hear the appeal. Statutory provisions for appeal from, or review of, orders of administrative tribunals have generally been construed as applicable, not to interlocutory orders, but only to final orders.” 192 Md. at 437, 64 A. 2d at 564.

There can be no serious question but that the Commission in the Big Vein case did not pass an operative order which had the effect of granting or denying some benefit under the Workmen’s Compensation Act to either Big Vein or the claimant, Leasure. The granting of the privilege to file an amended claim did not adjudicate any issue of law or fact. At most, it merely set the stage for an orderly presentation of the evidence to the Commission of the entire claim and not a fragmented part thereof. Moreover, it may well be that Leasure was unsuccessful in his pursuit of the claim, notwithstanding that he was allowed to amend.

Maryland does not appear to have passed heretofore directly upon the question of the appealability vel non of an award of temporary disability, but at least one case involving a temporary compensation award has been decided by the Court of Appeals, although the precise issue now before us does not appear to have been raised or decided. See Pressman v. State Accident Fund, 246 Md. 406, 228 A. 2d 443 (1967), where Chief Judge Hammond in his factual explication states, “[o]n August 23, the Commission ruled that the Fund was the insurance carrier ... at the time of the accidental injury . . . and ordered payment by the Fund of temporary total disability. . . . The Fund appealed this order . ...” 246 Md. at 409-10, 228 A. 2d at 445.

Other jurisdictions are divided in their views of the phrase, “final order.” The Tennessee Supreme Court, in Aetna Casualty and Surety Company v. Miller, 491 S.W.2d 85 (Tenn. 1973), held that only those orders of a compensation commission which put an end to the entire claim are final and appealable. The Court of Appeals of New Mexico has said that to be “final” an order of compensation must completely dispose of the case insofar as the court has power to dispose of it. Johnson v. C. & H. Construction Company, 78 N. M. 423, 432 P. 2d 267 (1967). Johnson dealt with a “fixed period of time” during which temporary total disability was to be paid. The judgment, however, directed that if the claimant accepted surgery, he was to receive an additional unspecified period of temporary total compensation. The court noted that the judgment did not dispose of the issue of disability because the claimant had not made an election to undergo surgery, thus, the matter of temporary disability was unsettled. While Havenner relies upon Johnson to support his position that the order in the case sub judice is not appealable, we observe little, if anything, therein which bolsters Havenner’s stand. Moreover, Johnson has been criticized for failing to follow the court’s own definition of “final judgment.” See 8 Natural Resources J. 522 (1968).

State ex rel. Prescott Laundry Co. v. Missouri Workmen’s Compensation Commission, 320 Mo. 1156, 10 S.W.2d 916 (1928), is also relied upon by Havenner. There the Missouri Commission found “temporary disability” and ordered the laundry to pay the costs of a hernia operation. No specific amounts were ordered paid nor was a dollar figure mentioned in the order. On appeal the court noted that no showing of the cost of the operation had been made, nor was the extent of the disability resulting therefrom ascertained, nor “. . . did the award undertake to fix the amount of such temporary or partial compensation.” 320 Mo. at 1162, 10 S.W.2d at 918. We believe the Prescott Laundry case to be so factually dissimilar as to be of no comfort to Havenner.

New Jersey, on the other hand, has held that an appeal from a temporary total disability award passed by a commission similar to Maryland’s is a final, appealable order. Judah v. General Super Markets, Inc., 99 N.J. Super. 389, 240 A. 2d 44, 46 (Law Div. 1968).

The rationale of that decision, to which we subscribe, is:

The statute providing awards for medical service and temporary (total or partial) disability compensation creates independent rights separate and apart from awards for permanent total or partial disability payments. Although the remedy of permanent disability is yet to be determined, temporary total or temporary partial disability awards are independent rights arising from the common remedy of workmen’s compensation which continue until the claimant reaches maximum improvement. Judah v. General Super Markets, Inc., supra; Chickachop v. Manpower, Inc., 84 N.J. Super. 129, 201 A. 2d 90 (Law Div. 1964).

Under Maryland law, payments of compensation made pursuant to an award of the commission, even though reversed on appeal, may not be recovered from the claimant, St. Paul Fire and Marine Ins. Co. v. Treadwell, 263 Md. 430, 283 A. 2d 601 (1971). To hold that an award of temporary disability (total or partial) may not be appealed would subject an employer-insurer to the hazard of paying an award which might amount to a large sum of money and render the employer-insurer unable to recover the expenditure if the courts determine the award was erroneous. The claimant is fully protected during the pendency of the appeal procedure by the requirement of our law that an appeal in a compensation case shall not operate as a stay. Hence, the claimant will continue to receive payments of temporary disability compensation during the litigation. Of course, if the claimant prevails, the payments continue. If, however, the claimant does not prevail, the employer-insurer may cease payment as of that time but may not recover prior payments from the claimant. St. Paul Fire and Marine Ins. Co., supra.

We think the term “final order” or “final action,” within the ambit of the Workmen’s Compensation Law, means an order or award made by the Commission in the matter then before it, determining the issues of law and of fact necessary for a resolution of the problem presented in that particular proceeding and which grants or denies some benefit under the Act. Flying “A” Service Station v. Jordan, supra; Walterscheid, “Final Judgment Rule” in Workmen’s Compensation Cases, 8 Natural Resources Journal 522, 528 (1968). Thus, the award of temporary total disability is a “final order” and appealable.

We make clear that we are not passing upon the merits of Havenner’s claim. What we here decide is the narrow issue that the employer-insurer has the right to a trial on the merits as to whether Havenner is temporarily totally disabled.

Judgment reversed.

Case remanded for further proceedings.

Costs to be paid by appellant.

      . Md. Rule B1 permits appeals from administrative agencies to the courts of “any final action” of the agency.

      . The other appellant is Argonaut Insurance Company, the compensation insurance carrier.

      . The Commission, of course, determined that Havenner has sustained “an accidental injury arising out of and in the course of employment.”

      . The record before the trial court and this Court did not contain a transcript of any of the proceedings before the Commission.

      . In Baltimore City, the appeal is taken to a common law court.

      . Compensation cases apparently are decided in New Mexico at the District Court level. See New Mexico Statutes, Chapter 59-10-3, 59-10-25, (1953,2d Replacement ed. 1974).

      . Such orders are also appealable in Arizona. See, e.g., Verdugo v. Industrial Commission, 15 Ariz. App. 155, 487 P. 2d 1 (1971) (appeal from temporary total disability award); Carranza v. Industrial Commission, 22 Ariz. App. 547, 529 P. 2d 259 (1974) (appeal from temporary partial disability award).