author: Singley, J.,

text:
    CLIFFORD SUNDAY JENKINS v. STATE OF MARYLAND
    [No. 649,
    September Term, 1974.]

      Decided April 7, 1975.

    The cause was argued before Morton and Menchine, JJ., and Frederick J. Singley, Jr., Associate Judge of the Court of Appeals, specially assigned.

      Robert E. Farnell, III, with whom were Hubert H. Wright, IV and Farnell, Freeland & Wright on the brief, for appellant.

      Gilbert H. Robinette, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and William, B. Yates, II, State’s Attorney for Dorchester County, on the brief, for appellee.
   Singley, J.,

delivered the opinion of the Court.

Clifford Sunday Jenkins, found guilty by a jury in the Circuit Court for Dorchester County of the crime of incest, has appealed to this Court. He advances five reasons why his conviction should be reversed: (i) insufficiency of the evidence; (ii) the admission of his confession; (iii) the exclusion of testimony of his personal physician; (iv) the exclusion of testimony of a character .witness; (v) the admission of his testimony on cross-examination that two of his children were in foster homes.

Jenkins, a 57-year-old Dorchester County antique dealer, was arrested by Trooper Legg of the Maryland State Police on 27 January 1974 in execution of an arrest warrant sworn out by Jenkins’ 14-year-old daughter, Linda, who had charged that her father had engaged in sexual intercourse with her on a number of occasions, commencing on 15 January 1973, and continuing for about two and one-half months.

Trooper Legg took Jenkins to the Maryland State Police detachment office at Cambridge, Maryland, where he was met by Corporal Donald H. Cox. Corporal Cox read to Jenkins the Miranda warnings from a card supplied by the State Police, and had Jenkins sign the card. He explained the charges to Jenkins, and according to Cox, Jenkins’ only statement at this time was that “He . . . could not believe the charge of incest was being brought against him by his daughter, and further added that any person who would have sexual relations with his daughter would have to be sick.” Jenkins was taken to the Dorchester County sheriff’s office.

On 29 January, Jenkins appeared at a bail hearing before Commissioner MeKelvey of the District Court. The court record shows that he was advised of his right to counsel, and that he indicated that he wished to employ his own lawyer.

There is a conflict in the testimony as to what happened on the 30th, the following day. Corporal Cox said that he received a telephone call from Deputy Sheriff Owen Lewis of Dorchester County, telling him that Jenkins wanted to speak with him. Jenkins’ version was that on 28 January he had asked the “tier runner” at the jail to leave a note on the sheriff’s desk asking Corporal Cox “to see Mr. Farnell, my lawyer,” “[a]nd to try to get me a bondsman.”

Cox went to Cambridge on the afternoon of 30 January, and saw Jenkins at the Dorchester County sheriff’s office. He again read the Miranda warnings to Jenkins, and had Jenkins sign the card. When it became apparent that Jenkins was ready to make a statement, Cox once more read the Miranda warnings which appeared on the statement form; typed in Jenkins’ responses that he understood the warnings, that he wanted to make a voluntary statement, and that he was waiving his right to have a lawyer present. Cox then typed a short statement in which Jenkins admitted that he had tried to have intercourse with Linda on one occasion. Jenkins signed each page of the statement.

At Jenkins’ trial, after an exclusionary hearing held out of the presence of the jury, see Gill v. State, 265 Md. 350, 289 A. 2d 575 (1972); Day v. State, 196 Md. 384, 76 A. 2d 729 (1950); White v. State, 13 Md. App. 1, 280 A. 2d 283 (1971), the trial court ruled, without making any specific finding of fact as regards Jenkins’ waiver of his right to counsel, that a prima facie case had been made that the statement had been voluntarily given and that it should be submitted to the jury. After taking testimony in the presence of the jury, the statement was presented to the jury for determination of voluntariness.

While Jenkins assigns five reasons why his conviction should be reversed, we need discuss only one of them: whether his confession should have been admitted. We have considered his other contentions and remain unpersuaded.

At argument much was made of Jenkins’ testimony that Corporal Cox had said, “You don’t need a lawyer.” Cox’s testimony was that he had no recollection of having made such a statement. Much emphasis was laid, too, on the conflict between Jenkins’ testimony that the note to Deputy Sheriff Lewis said that Jenkins wanted Cox to see about a lawyer and a bondsman, and Cox’s statement that the message from Lewis was simply that Jenkins wanted to see Cox. This discrepancy, Jenkins argues, could have been resolved by the State’s calling Lewis, who was present in the courtroom, as a witness.

Jenkins cites Gill v. State, 11 Md. App. 378, 274 A. 2d 667 (1971) in support of his notion that by failing to call Lewis as a witness, the State failed to meet its constitutional burden of proving the voluntariness of the confession. We think this reliance is misplaced. In Gill, which reached the Court of Appeals where it was reversed on other procedural grounds, Gill v. State, supra, 265 Md. 350, there was a failure to call an officer who had taken part in the interrogation and had allegedly threatened the defendant. Here, Deputy Sheriff Lewis had taken no part in the interrogation. In fact, there was no evidence that he had ever been in contact with Jenkins. The Court of Appeals, in Gill, supra, specifically dealt with this situation:

“[The State’s affirmative duty] does not require that each person who had casual contact with the accused, once he was in police custody or being interrogated, must testify to the voluntariness of the confession in order for the prosecution to satisfy its burden.” 265 Md. at 353.

Jenkins had ample time to engage counsel between 27 January and 30 January. According to Cox, Jenkins had been given an opportunity to call a lawyer at the time of the hearing on 29 January, before Commissioner McKelvey. Jenkins testified that during this period he had attempted unsuccessfully on at least one occasion to reach his counsel, Mr. Farnell, by telephone.

The difficulty, however, goes deeper than this. Cox’s statement that he had no recollection of having told Jenkins that he did not need a lawyer falls short of a categorical denial. A careful examination of Jenkins’ testimony leaves us with the impression that the statement attributed to Cox may well have been made not on 27 January, when Cox and Jenkins had a conversation of a cursory nature, but on 30 January, immediately before Cox took Jenkins’ statement. The admissibility of the statement hinges on our resolution of this factual issue, in the absence of finding of fact by the trial court.

The State concedes that Miranda v. Arizona, 384 U. S. 436 (1966) places it under a heavy burden to show that an accused has voluntarily, knowingly and intelligently waived his right to counsel after having requested an attorney, State v. Fowler, 259 Md. 95, 267 A. 2d 228 (1970); Nasiriddin v. State, 16 Md. App. 479, 298 A. 2d 490 (1973). While it is true that there is no reason why an accused cannot change his mind, United States v. Hodge, 487 F. 2d 945 (5th Cir. 1973); United States v. Grady, 423 F. 2d 1091 (5th Cir. 1970), it is equally true that Corporal Cox’s statement that Jenkins did not need a lawyer, which Cox did not unequivocally deny, if made on 30 January, might well have induced Jenkins to make a statement under circumstances which would not have been neutralized by a repetition of the Miranda warnings. See Streams v. State, 238 Md. 278, 208 A. 2d 614 (1965); Thiess v. State, 235 Md. 541, 201 A. 2d 790 (1964); Boone v. State, 2 Md. App. 80, 233 A. 2d 476 (1967).

To sum up, if the statement which Cox made, according to Jenkins, had been made on 27 January, immediately after Jenkins’ arrest, it might well have been neutralized by the passage of time and by the two Miranda warnings which Cox gave Jenkins immediately before taking the statement on 30 January. On the other hand, if (as well may be the case on the record before us), Cox told Jenkins on 30 January that he did not need a lawyer, this may well have attenuated the voluntariness of Jenkins’ confession, see generally State v. Fowler, supra, 259 Md. 95.

When an appellate court is called upon to review the admissibility of a confession or other extrajudicial inculpatory statement, it must make an independent review of the record. Chief Judge Orth, for the Court, stated the rule in Dennis v. Warden, 6 Md. App. 295, 315, 251 A. 2d 909, 920 (1969):

“While the general rule is that the determination of the admissibility of a confession is left largely to the trial court, and will not be disturbed unless there is a manifest abuse of discretion, Cooper v. State, 1 Md. App. 190, [228 A. 2d 840 (1967),] it is our duty on review to examine the entire record and make an independent determination of the ultimate issue of voluntariness. Davis v. North Carolina [384 U. S. 737, 741-42 (1966)]. As is almost invariably so in cases involving confessions obtained through unobserved police interrogation, there is a conflict here in the testimony as to the events surrounding the interrogations. But we are not a finder of facts; the weight to be given evidence and the credibility of witnesses are matters for the lower court.”

Judge Moylan, for the Court, put it a little differently in Walker v. State, 12 Md. App. 684, 695, 280 A. 2d 260, 265-66 (1971):

“What we mean, therefore, when we say that we have the obligation to make an independent, reflective constitutional judgment on the facts whenever a claim of a constitutionally-protected right is involved is that, although we give great weight to the findings of the hearing judge as to specific, first-level facts (such as the time that an interrogation began, whether a meal was or was not served, whether a telephone call was requested, etc.) we must make our own independent judgment as to what to make of those facts; we must, in making that independent judgment, resolve for ourselves the ultimate, second-level fact — the existence or non-existence of voluntariness.”

The facts before us were not established below to the degree of certainty necessary to enable us to make án independent review of the record. We are therefore unable to sustain or reject the trial court’s determination of voluntariness. In accordance with the procedure set forth by the Court of Appeals in Gill v. State, supra, 265 Md. 350, we reverse the judgment entered below and remand the case for a new trial.

Judgment of the Circuit Court for Dorchester County reversed and the case remanded for a new trial.

Costs to be paid by Dorchester County.

      . Another troublesome aspect of the case is that our examination of the record would seem to indicate that Jenkins may have been taken to Annapolis at some time between 28 and 30 January, possibly by Corporal Cox. Neither counsel nor the court pursued the question of the purpose or significance of this trip.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    UNSATISFIED CLAIM AND JUDGMENT FUND BOARD (Now Known as Maryland Automobile Insurance Fund) v. THOMAS W. BOWLES
    [No. 667,
    September Term, 1974.]

      Decided April 7, 1975.

      The cause was argued before Thompson and Lowe, JJ., and Robert F. Sweeney, Chief Judge of the District Court of Maryland, specially assigned.

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

      Donald P. McLaughlin for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Thomas W. Bowles, appellee, sued the Unsatisfied Claim and Judgment Fund, appellant, now known as the Maryland Automobile Insurance Fund, in the Circuit Court for Prince George’s County. A jury trial was held, Judge Ralph W. Powers presiding. Directed verdict motions were made by appellant at the close of Bowles’s case and at the close of the entire case. The trial judge reserved ruling on these motions and sent the case to the jury. The jury returned a verdict in favor of Bowles for $25,000 which, under the statute, was reduced to $15,000. Subsequently the trial judge denied appellant’s motion for judgment n.o.v. The sole contention on appeal is that the trial judge erred in not directing a verdict in favor of the Fund.

Bowles testified that at approximately 6:30 p.m. on February 23, 1973, while walking south, facing oncoming traffic on the gravel shoulder of Ritchie Road in Prince George’s County, Maryland, he was struck and knocked unconscious. His exact testimony in this regard is as follows:

“As I was walking up Ritchie Road, which is a very busy road, at practically any time of day, all of a sudden the lights went out. The next thing I know I was laid up in the ambulance, woke up in the ambulance, rather.
“Q. All right, now, you say the lights went out. Tell us in detail what your recollection is of the events.
“A. Well, I was struck on the shoulder of the road. Cars was going by me like they normally do.
“A. I was walking along, traffic was going, and I don’t know where it came from. The lights just went out.”

Bowles further testified that he did not hear anything prior to being struck. As a result of the collision he sustained a severe laceration to the right side of his right thigh, a fractured femur, a fractured right wrist and multiple lacerations and abrasions about the lower extremities. He was discovered, unconscious, by a passing motorist, two or three feet off the road lying partially in a driveway which intersects Ritchie Road. As a result of his injuries Bowles was confined to bed in Prince George’s County Hospital in traction, and subsequently a body cast, for approximately three months. He was released from the hospital on June 30, 1973 with permanent injury to his right leg and wrist.

Further testimony disclosed that Ritchie Road is a two-lane highway, 25 feet in width, with one southbound and one northbound lane. It has a gravel shoulder approximately 3 feet wide in the area where Bowles was injured.

The appellant’s case consisted exclusively of the testimony of an expert chemist who concluded from the hospital report that Bowles was “clinically drunk” at the time of the collision. This was directly contradicted by Bowles who testified that he was sober at the time of the collision and that he was fully aware of his surroundings at that time.

Appellant mounts a two-pronged attack on the trial court’s denial of its motions for directed verdict. First it claims that Bowles failed to provide sufficient evidence to go to the jury on the question of whether a motor vehicle caused his injuries. Second, it argues that, even assuming such proof was produced, Bowles failed to show that the unknown driver of the motor vehicle was negligent.

In assessing the propriety of a grant or denial of a motion for directed verdict, we must assume the truth of all credible evidence on the issue and all inferences fairly deducible therefrom and consider them in the light most favorable to the party against whom the motion is made; and if such evidence and inferences lead to conclusions from which reasonable minds could not differ, then the particular issue is one of law for the court and not of fact for the jury. Therefore, if there is any competent evidence, however slight, from which a rational mind could infer a fact in issue, the trial court cannot invade the province of the jury by directing a verdict. Belleson v. Klohr, 257 Md. 642, 646, 264 A. 2d 274 (1970); Lauer v. Scott, 12 Md. App. 555, 557, 280 A. 2d 917 (1971). We may not consider any facts shown by the moving party which have been “controverted in any way.” Lloyd v. Bowles, 260 Md. 568, 570, 273 A. 2d 193 (1971). We, therefore, cannot consider the testimony of appellant’s witness that Bowles was “clinically drunk.”

In support of its contention appellant cites Johnson v. Jackson, 245 Md. 589, 226 A. 2d 883 (1967) and Bavis v. Fonte, 241 Md. 123, 215 A. 2d 739 (1965) for the general rule that where a plaintiff by his own evidence shows two or more equally likely causes of his injury, for only one of which defendant is responsible, plaintiff cannot recover. The necessary and logical corollary to that rule was discussed and applied in Otis Elevator v. LePore, 229 Md. 52, 181 A. 2d 659 (1962). In that case part of the plaintiffs foot was severed while he was riding on an escalator. Evidence disclosed that there was an unsafe gap between the steps of the escalator and its side walls. The rest of the evidence was summarized by the Court as follows:

“As he (plaintiff) neared the bottom of the escalator, he screamed and was turned further to his left than he had been facing. The father tossed away a package he was carrying and went around Ricky’s right side to a place below the boy. The father grasped him under the arms from below and to the side but was unable to lift the child, whose foot was caught in some unknown manner. When the boy reached the second floor landing he was suddenly released, and his father was able to lift him from the escalator, and ‘the first thing I pulled him up I noticed part of his foot was missing, so I just picked him up and put my hand under it, the missing part.’ The entire front half of the foot forward of the instep had been amputated.” Id. at 54.

The defendant claimed the plaintiff had failed to show that its negligence had been a proximate cause of his injuries. The Court affirmed the judgment and stated what is known as the “more probable than not” rule:

“Prosser, Torts (2nd ed.), § 44, sets forth the true test concerning the legal sufficiency of evidence on this point as follows:
‘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.’ ” Otis Elevator v. LePore, supra at 58.

It is thus clear that a plaintiff need not exclude every possible cause of his injury other than the defendant’s negligence. Peterson v. Underwood, 258 Md. 9, 17, 264 A. 2d 851 (1970).

In the case at bar the evidence clearly shows that it was more probable than not that a motor vehicle was responsible for appellee’s injury. Any other conclusion would be contrary to common sense and the facts. We therefore find that appellee produced sufficient evidence to go to the jury on this issue.

Appellant also argues that there was insufficient evidence to go to the jury on the issue of negligence. It is axiomatic that the mere happening of an accident standing alone does not give rise to a presumption of negligence. Peterson v. Underwood, supra at 19; Schaub v. Community Cab, Inc., 198 Md. 216, 225, 81 A. 2d 597 (1951). This rule is not applicable, however, where, the doctrine of res ipsa loquitur applies. That doctrine was described in Short v. Wells, 249 Md. 491, 496, 240 A. 2d 224 (1968):

“In certain situations it has been held that the mere happening of an accident is evidence of negligence because accidents ordinarily do not happen in the absence of a breach of duty and this in and of itself constitutes enough circumstantial evidence to permit an inference to be drawn by the jury in a given case. This is the doctrine of res ipsa loquitur. Its application in automobile accident cases depends on the circumstances of each accident.”

In Hanes v. State, Use of Lamm, supra, res ipsa loquitur was held applicable to a factual situation which we find indistinguishable from the instant case. In Hanes an automobile ran off a straight highway twenty-two feet in width. The highway was dry; there was only a slight upgrade at the point where the car left the road. There was no claim made by the driver that he was not in exclusive control. No act of God was alleged to have been the cause of the accident so as to make the doctrine inapplicable. The driver’s claim that an emergency forced him from the road was held to have been properly submitted for the jury’s determination. In the instant case, as in Hanes, an automobile left a dry and straight roadway and struck a pedestrian who was walking facing traffic on the gravel shoulder. See Md. Code, Art. 66½ § 11-506 (b). There was no evidence that anyone other than the driver was in exclusive control of the automobile and no act of God was shown to have been the cause of the accident. Under these facts, the doctrine of res ipsa loquitur applied and the inference of negligence which arose was sufficient if unrebutted, to allow the case to go to the jury. Appellant presented no evidence to rebut the inference of negligence. The trial court was correct in denying appellant’s motions for judgment n.o.v.

Judgment affirmed.

Appellant to pay costs.

      . Md. Code, Art. 48A, § 243. Among other claims the “Fund” is responsible for damages caused by the negligent use of a motor vehicle when its identity and that of the operator and owner cannot be ascertained, § 243 H.

      . The parties did not raise the issue of the applicability of res ipsa loquitur below or in this appeal. We will consider the issue because under Maryland rules of practice the res ipsa doctrine is not a rule of pleading but relates to the burden of proof and sufficiency of evidence. Hanes v. State, Use of Lamm, 236 Md. 28, 32, 202 A. 2d 364 (1964).


author: Orth, C. J.,

text:
    IN RE APPEAL NO. 769, September Term, 1974 from the Circuit Court of Baltimore City, SITTING AS A JUVENILE COURT
    [No. 769,
    September Term, 1974.]

      Decided April 7, 1975.

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

      Sobmon Reddick, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and George E. Burns, Jr., Assistant Public Defender, on the brief, for appellant.

      Martin M. Mrozinski, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City and Clarence Long, Jr., Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

The keystone of the democratic system under which the peoples of this country have elected to be governed is that no person shall be deprived of life, liberty, or property, without due process of law. This tenet was ordained and established by the people of the United States in amendments to the Constitution of the United States, and declared by the people of this State in the Declaration of Rights to the Constitution of Maryland. It is a doctrine broad in concept but clear in meaning. It transcends the separation of powers and applies with equal force to the executive, legislative and judicial branches of our government. It is buttressed by other constitutional guarantees and prohibitions, implemented by statutes enacted and fulfilled by rules adopted. It is judicially to be administered by courts of justice. In this case, due process of law was smutched by the proceedings below.

I

This appeal stems from a proceeding against a child in the Circuit Court of Baltimore City, Division for Juvenile Causes (Juvenile Court). On 25 September 1974 there was an order issued by that court which recited that the respondent child had been found delinquent by reason of breaking and entering and that such delinquency had resulted in a monetary loss of $1000 to the victim of the delinquent act. The court ordered “. . . that [name and address of child’s mother] parent of said respondent shall make restitution in the amount of $1,000 — One thousand dollars and no cents to the said [name and address of the victim]. All subject to further Order of the Court.” On 16 October, Solomon Reddick, Esq., Assistant Public Defender, filed an “Order for Appeal”, directing the Clerk to enter an appeal “from the judgment and order of restitution in the above captioned case [the juvenile proceeding against the child].”

II

The order before us for review set out that it was “in accord with Section 71A, Art. 26 [Annotated Code of Maryland — 1957 Edition].” Article 26 was repealed by Acts 1973, 1st Special Session, ch. 2, § 2, effective 1 January 1974. The law applicable was enacted by Acts 1973, 1st Special Session, ch. 2, § 1, codified as Courts Art. § 3-839. It was amended by Acts 1974, ch. 691, § 8, effective 1 July 1974. The section is entitled “Liability for acts of child”, and it provides:

“(a) Award of judgment against parents. — In any juvenile cause, the judge may award a judgment in favor of a wronged person and against a parent for the acts of willful or malicious destruction or theft of any property owned by the wronged person, or any medical expenses incurred by an injured person willfully or maliciously caused or committed by the child of that parent.
(b) Restitution by parent. — The judge may order the parent to make restitution to the person whose property has been destroyed or stolen, or who has incurred the medical expenses, and may cite for contempt for a violation of his order if the facts of a particular case before him indicates sufficient ability of the parent to comply with the order.
(c) Limit of parent’s liability. — The limit of the parent’s liability for all damages including medical expenses under this section may not exceed $1,000.
(d) Restitution by child; liability of child precedes liability of parent. — The court may order the child who willfully or maliciously destroys or steals property or willfully or maliciously injures another to make restitution or pay the medical expenses himself if that is feasible considering the age and circumstances of the child; and if this is ordered, the liability of the child precedes the liability of the parent.”

The legislative intent is clear. In any juvenile cause, parents may be held liable for acts of their child under specified conditions.

I. There must be legally sufficient proof
(1) that the child
(a) destroyed property; or
(b) stole property; or
(c) injured a person; and
(2) that the acts by the child were
(a) willful; or
(b) malicious; and
(3) that the wronged person suffered pecuniary losses in a certain amount as a result of the child’s acts.
II. Upon such proof, a juvenile court may, in an amount equal to such damages proved or in the amount of $1,000, whichever is the lesser, and without regard to the ability of the parent to pay
(a) award a judgment in favor of the wronged person and against a parent; or
(b) order a parent to make restitution to the wronged person; or
(c) both award such judgment and order such restitution; and
(d) order the child to make restitution if that is feasible considering the age and circumstances of the child; and
(i) upon such order the liability of the child precedes the liability of the parent.
III. Upon violation of an order that a parent make restitution, the juvenile court may cite the parent for contempt if the facts of the particular case indicate sufficient ability of the parent to comply with the order.

In Matter of Sorrell, 20 Md. App. 179, cert. den., 271 Md. 744, we considered the procedures by which a juvenile court may properly exercise the powers bestowed by Courts Art. § 3-839. We thought that to satisfy constitutional requirements the powers must be exercised in accordance with the provisions of Maryland Rule 922 and what was then Code, Art. 26, § 70-22, and is now Courts Art. § 3-837. Rule 922, § a provides that a juvenile court may control the conduct of a person who is properly before it in accordance with Courts Art. § 3-837. Section b of the Rule concerns notice. It directs the clerk to “issue notice of a hearing setting forth in concise language the nature of and the grounds for the relief requested.” It requires that the notice shall be served by personal service or registered mail, not less than two days before the hearing, upon the parties affected by the relief sought, unless such notice is waived. Courts Art. § 3-837 authorizes a juvenile court, pursuant to the procedure provided in the Maryland Rules, to make an appropriate order directing, among other things, a person properly before it, to make restitution if:

(1) an order of disposition had been duly made; and
(2) the court finds that such action will provide reimbursement of costs, expenses, or restitution; and
(3) notice has been given as prescribed by the Maryland Rules.

We dealt with the nature of the hearing and the requirements of its conduct. We indicated that there should be a charging document filed against the parent. We found it manifest that in the case reviewed “the trial court had concluded, erroneously we think, that entry of judgments under Article 26, § 71A flowed inevitably from the prior determination that the juveniles were delinquent.” 20 Md. App. at 191. We held that “a judge exercising jurisdiction under that statute may act only after a hearing under Rule 922, wherein evidence is produced that is legally sufficient to support a conclusion that damages authorized by it were willfully or maliciously caused by or committed by a child under eighteen years.” We said flatly, “The mere finding of delinquency of the juveniles does not provide such evidence.” Id. We found it “plain that factual findings wholly adequate to support a finding of delinquency [or a finding that a child is neglected, dependent, or in need of supervision] will not necessarily support the statutory requisites for imposition of judgments against [and orders for restitution by] parents.” Id. We explained that a parent is not a party at the delinquency hearing of the child, and that such a hearing was clearly not the forum wherein they were to defend themselves against liability for restitution or reimbursement. We asserted: “Such an issue was neither presented to nor controlled by the delinquency hearing.” Id., at 192.

We make two further observations. A parent is entitled to representation by legal counsel at a hearing to determine that parent’s liability. Courts Art. § 3-830 (d). See Courts Art. § 3-801 (u). The rules of evidence applicable to civil cases shall apply at such hearings. Rule 912, § c.

Ill

The order for restitution issued 25 September 1974 was preceded by a hearing the same day before the judge of the Juvenile Court. In order to understand what transpired at the hearing, it is necessary to look at what had previously taken place. We shall attempt to do so with as much certainty as the record permits.

We assume that there was a proper finding that the juvenile here involved was a delinquent child. We start then with a 9 April 1974 docket entry and a notation on the back of the petition filed, stating the Juvenile Master ordered: “Study and Report by the Probation Department to determine restitution — Disposition to be set in when companion cases are heard.” On 11 April a Deputy Clerk of the Juvenile Court wrote the owner of the broken dwelling informing him that the child had appeared before the court on 9 April and “admitted the offense and thus no formal Court hearing will be necessary.” The letter suggested: “If you have suffered a monetary loss and wish the Court to consider the possibility of restitution or have information that you feel should be presented to the Court, please contact this child’s Probation Officer (whose name and telephone number was set out) within two weeks of the above date of the hearing.” There was a hearing before the Master on 9 May. According to the docket entry and notation on the petition, the Master ordered that disposition be postponed for further investigation. The Master wrote a “Memorandum” under the same date to the Clerk of the Juvenile Court stating that the case had come before him on 9 May for a disposition. The Master said that the matter of restitution was “of vital importance to the victim” and that the probation officer has presented an itemized list showing that the actual losses amounted to $4275, of which $784 had been paid by an insurance company. The memorandum stated that notice had been given to Solomon Reddick, Esq., a public defender attorney, that the next hearing before one of the masters “will be a restitution hearing to determine the responsibility in this case of the parents of the other co-defendants.”

The next docket entry is under date of 5 September 1974. It reads:

“Hearing before Master Rifman Order: Probation to the Department of Juvenile Services and restitution of $1,000.00.”

This entry is obviously made from a notation on the back of the petition reading: “Probation to Department of Juvenile Services and restitution of $1,000.00.”

On the same date, the Master made a report of the case to the judge of the Juvenile Court:

“The above matter having been assigned for hearing before me, and the hearing having been had this date in which the evidence disclosed the Respondent to be a Delinquent child in need of care and treatment and, therefore, within the jurisdiction of this Court, it is recommended that the following Order be passed.”

An “Order for Probation” was set out on the bottom portion of the “Master’s Report.” It read:

ORDERED this 5th day of September 1974 that the Respondent having been found to be Delinquent and in need of care and treatment he is hereby placed on probation under supervision of a Probation Officer of this Court.
While on probation the probationer shall refrain from further delinquent behavior; shall avoid persons and places of disreputable or harmful character; shall report as directed and obey the instructions of his Probation Officer; shall not leave the jurisdiction without permission and shall comply with other conditions as specified below or may at any time be imposed by this Court.”

The order was signed by the judge and noted that it was filed on 5 September 1974, with “Copy served on parent.” The same day there was filed a document entitled “ORDER FOR RESTITUTION FOR PARENT OR GUARDIAN” signed by the judge. Except for the date, it was identical with the order subsequently issued on 25 September 1974.

On 6 September 1974 an “Exception to Order for Restitution” was filed by Charles Allan Finebloom, an Assistant Public Defender. It was captioned: PETITION NO: 013025 EX PARTE IN THE MATTER OF [child’s name].” Directed to the Clerk, it read:

“Pursuant to Rule 908 (e) (2) of the Maryland Rules of Procedure, please be advised that the Office of the Public Defender, on behalf of the above Respondent, excepts to the finding of Master Rifman, on 9/5/74 in the above captioned Petition(s) and request the matter be re-set for a hearing before the Judge of this Honorable Court.”

On 9 September 1974 the Deputy Clerk of the Juvenile Court, by letter, informed the State’s Attorney that exceptions had been filed and that his office would be notified as to the hearing date. On 16 September the Juvenile Court Services Division notified the District Public Defender of Baltimore City that the child had requested representation, and that there would be a hearing before Judge Hammerman “(except to restitution)” on 25 September 1974 at “1:30”.

With this background, we look at the proceedings of 25 September 1974. The bailiff had the child stand and read him the charge in the petition. The Judge asked Mr. Finebloom if he represented “the Respondent”, patently meaning the child, and Mr. Finebloom said that he did. The transcript reads:

“THE COURT: Now, do I understand, Mr. Fine-bloom that the posture of this case this afternoon is that on April the 9th, 1973, tl before Master Rifman, the Respondent entered an admission to this charge and was found delinquent? And after an investigation and study by the probation department on September the 5th of this year Master Rifman placed the Respondent on probation and ordered restitution against the boy?
MR. FINEBLOOM: Restitution against the parent, Your Honor.
THE COURT: Against the parent in the amount of one thousand dollars and that on the following day an exception was filed by your office as to the restitution order only?
MR. FINEBLOOM: Yes, Your Honor.
THE COURT: And this is why we are here this afternoon; is that the correct posture of this case,
Mr. Finebloom?
MR. FINEBLOOM: That is correct.”

The Assistant State’s Attorney informed the court that the victim was present. What next occurred is enlightening and we set it out as reported:

“MR. LONG: Yes, sir. Perhaps I ought to ask a question about the ground rules never having participated in a restitution per se in court.
THE COURT: Well, I never have either as far as the exception so we’re all new to the game.
MR. LONG: I assume the State will not have to prove the involvement of this —
THE COURT: Not at all.
MR. FINEBLOOM: Your Honor, may I address myself to that?
THE COURT: Yes.”

Mr. Finebloom discussed, correctly, our holdings in Matter of Sorrell, supra. The judge said he was in agreement but that the question before him was whether “the State has to prove that the Respondent committed the act that he is charged with committing.” His answer to that “was no and it is still no.” He explained:

“First of all, he admitted to the charge. There is no need really for proof, he admitted to it. But, even if he hadn’t — even if he had denied it and there was a full adjudicatory hearing and he was found delinquent, the State does not have to prove his guilt any more. What the State does have to establish and what the Sorrell case says is that it must be a determination that there was willfulness or maliciousness in the damage or loss incurred, and that is the case here. I have to be able to make a finding that what this Respondent was involved in had the element of willfulness or maliciousness, that’s true.”

After further argument concerning the need of proof by the State of the extent of the child’s involvement, the judge said:

“Well, now, you’re just going around the same mulberry bush again; there has to be an establishment of willfulness or maliciousness. Now, how the State chooses to go about it is their decision. You know what constitutes maliciousness, what constitutes willfulness. Is the fact that the other boys may have done more damage than he did means there is no maliciousness or willfulness on his part and you’re free, of course, to argue that there was no willfulness or maliciousness.”

Shortly thereafter the judge had occasion to comment further on his view regarding proof of willfulness and maliciousness:

“. . . I don’t think the law is that the State has the burden of proving willfulness and maliciousness because an order of restitution can be sought by the State or it can be a sua sponte proposition also and I think that all that is required is that the Court, whether it be by petition of the State, by sua sponte that the Court must be able to establish in the record that there is some willfulness and maliciousness; but the burden of proving that doesn’t rest with the State’s Attorney. The State has the option, if it wishes, to try to show some willfulness or maliciousness but the State can remain moot and not even be present at the hearing and still I could find willfulness and maliciousness perhaps. I just wanted to clarify where the burdens of proof lie.”

Immediately preceding these last remarks the court directed the State to proceed. The State could not do so. The Assistant State’s Attorney said:

“Frankly, Your Honor, the State today is only prepared to go forward with that testimony which would establish the degree of damage to the victim. We have to rely on the court records to show willfulness and maliciousness and, from the nature of the crime, he has admitted to burglary in this case. We feel that per se the case is maliciousness and willfulness. We do not have the direct testimony of the — from the Officer that caught him.”

The State’s lack of preparedness was simply resolved. The judge directed that the State read an “offense report” into the record.” The Public Defender objected and was summarily overruled. Over further specific objection by defense counsel, the court directed the State to “take all the offense reports and make them a part of the record in this proceeding .... So, they will be a part of the record.” It then told the Assistant State’s Attorney to “read those portions that you feel are relevant.” Specific objection was again made and overruled. The Assistant State’s Attorney did as directed. What he read included a portion of an offense report which he observed made “no specific reference to this particular burglary” but asserted that the juvenile had been taken into custody and, “after being advised of his rights, admitted to committing these offenses while in company with subjects indicated”, and that he turned over to the officer a revolver, holster and ammunition taken in “complaint number 6J36546”. The State suggested that a revolver had been taken in the breaking which was the subject of the proceeding before the court. The court then requested the State to read “the original offense report of these burglaries.” The State did so. The report recounted in detail what the victim had told the police and what the police had ascertained:

“Complainant stated ... he left his home at 1830 hours, 2 October 1973. When he returned at 2355 hours he found the door located on the side of the house — apparently that means the door was opened. It was located on the side of the house. Upon investigation, I found that the entrance had been gained by breaking a pane of glass six inches by 12 inches, located approximately three feet from the floor and unlocking the door. Suspect further had to unlock a lock located on the bottom of the door. Persons unknown then entered various rooms in the home and took the above described property.
I advised the complainant to make a complete list of the missing property and recontact the police.”

According to the State “a later offense report” gave “a complete list of all the property that was allegedly taken.” The court called a bench conference, at the conclusion of which it was stipulated that the loss sustained by the victim totaled $4275. The court asked if the State wished to be heard further “on the subject of what restitution if any should be ordered by this Court?” The State neither offered nor proffered any evidence. It simply declared: “There were originally four people charged in this offense, including the Respondent. Three [all juveniles] have been found delinquent. The other individual was dismissed by the State. . . . Presumably that means we could reopen the case but I suspect that we’ll not do so.” The State felt “that the remaining loss should be divided three ways.” It figured that each juvenile should pay $1152. The court observed that this was more than the law allowed.

Defense counsel argued strenuously that the State had not produced evidence sufficient to make a determination that an order of restitution under the statute should be issued against the parent. He pointed out that the State was notified of the hearing and that summonses were sent. “The State’s Attorney has a detective and an officer involved in this case; a detective who investigated the case, who was the primary sponsor of the offense report and we submit that that is the evidence that the Sorrell case is talking about when it is talking about legally sufficient evidence to support a finding in a restitution hearing.” He complained that the offense report, which he challenged, was not such legally sufficient evidence. He argued the court must consider “the involvement and the degree and extent of involvement of this Respondent” when passing an order of restitution against his parent. He urged that no evidence “has been produced to show that the act committed by the Respondent was a wilful or malicious act. There has been no testimony at all regarding this offense either that goes to wilfulness or maliciousness or degree of involvement. Nothing legally sufficient in law to support a finding of an order of restitution against his parent.” Defense counsel iterated and reiterated his argument, making his points abundantly clear. He indicated that he had an itemization of the mother’s income and expenses — “she’s a nursing technician at Saint Agnes Hospital.” It is manifest from the transcript of the proceedings that defense counsel began his argument at the invitation of the court — “Mr. Finebloom, you wish to be heard at this time?” — after the State had rested its case. In effect, he was arguing a motion to dismiss. Rule 535. The court did not look at it in that light. When defense counsel referred to the statement of the mother’s income and expenses, the court asked if he wanted to introduce it into evidence. Defense counsel thought that the proceedings had not yet reached that point, and said so several times, but the court insisted that the defense had rested its case: “You say you haven’t got to that point, you rested, what other point are we getting to?. ... If you are not going to bring it in now, when are you going to bring it in. . . because you rested your case.” Defense counsel was left with no alternative but to offer the statement of income and expenses. It showed a monthly take home pay of $480, debts of $15,801 and monthly expenses for payments on the debts, utilities, and food of $474. The court examined the mother at length with regard to the statement. The court ruled:

“I’m going to pass an order at this time against you ordering you to pay the sum of one thousand dollars by way of restitution to [the victim] through the probation department on an installment schedule as the probation department will set up for you.
I find that not only did your son commit the burglary of these premises but that he did so willfully and maliciously. I indicated at the outset that the State has no burden of proving anything really. Counsel argues that the State didn’t present anything regarding willfulness or maliciousness and that is true. But, as I said at the outset of the hearing, what the law requires is that the Court be able to establish that there was a willfulness and maliciousness in the loss here — in the act committed by the Respondent that led to the loss and not that the State has to prove it, but that the court find it to be and I find it to be.
I think that the offense reports are clearly admissible in this type of hearing. We are not talking about an adjudicatory hearing, we’re talking about a separate hearing just on the matter of restitution.”

The judge then recounted the circumstances of the crime as related in the offense report. He noted that the juvenile had “fully admitted his guilt in this” and then referred to a “social history” prepared by the Probation Department, “which is a part of the record in this case” and which was presented to the Master upon his order after the adjudication. He read from that report what the juvenile had said concerning his participation in the crime, fully inculpatory. He used this confession as the basis of finding “a clear willfulness in perpetrating this crime.” He opined that the extent of the loss showed “a severe maliciousness.” He interpreted the Sorrell teachings in the light of the factual background of that case as he remembered it and distinguished Sorrell factually. We do not find the distinction to be sound.

The court questioned the mother on her ability to pay. He concluded she should make restitution. He explained his position:

“Believe me I have nothing in the world against [the mother]. From all I know and from reading the reports, she’s a very fine, substantial woman, an exemplary woman. I don’t want to see any hardship imposed upon you, none whatsoever, but the law says that restitution can be ordered in the situation. Her son did commit the crime or this delinquent act and in trying to match her interests as against the interests of Tthe victim], they are both meritorious, but, I feel in the balance of things that he should be made as whole as we can possibly make him. As far as I’m concerned the burden should really rest on [the juvenile]. He’s the one who did it, not his mother, and I think anything his mother will have to pay he ought to eventually, sooner or later, pay it back to his mother, if he has any sense of decency or good conscience and if I can be presented by defense counsel, either today or at some subsequent time, with any plan whereby the order of restitution can be lifted from the mother and transferred to the Respondent where he would be — and I say viable which means there is some ability for him to make the payments — I would be delighted to transfer the burden legally on his shoulders and remove it from his mother’s shoulders.
This Court'can, as a condition of probation, order restitution by a Respondent and nothing would please me more than to be able to shift the responsibility to where it morally belongs.”

He told the mother that failure to obey the order to make payments as called for by the Probation Department “will result in your being brought into Court for contempt of Court, which will subject you to a prison sentence if you are found guilty of contempt which you will be if you don’t make the payments.”

We have set out the circumstances under which the order of restitution was issued in such detail to give the sense of its ineffable quality. We find no basis whatsoever to support the conception that the order for restitution was entered “by the Law of the land.” To put it another way, it is manifest that the order deprived the mother of her property without due process of law.

The record does not reflect that there was notice of the hearing issued by the clerk setting forth in concise language the nature of and the grounds for restitution which was served on the mother by personal service or registered mail not less than two days before the hearing as required by Rule 922, § b. The mother was present at the hearing, however, and we shall assume, for the purpose of decision in this case only, that notice was waived by her. We shall also assume, only for the purpose of decision here, that she had the assistance of counsel to which she was entitled.

We find nothing in the record with respect to the mother which would serve in the nature of a declaration such as when judgment is sought in a civil case, or of a charging document which would give the mother reasonable information that an order of restitution was being sought. The docket entry under date of 5 September 1974 indicates that the Master ordered restitution of $1,000. This apparently was entered from a notation of that date on the back of the petition: “(Rifman) Probation to Department of Juvenile Services and restitution of $1,000.00.” There is no signed order to this effect in the record. See Rule 908, § e 1. Nowhere is it indicated that the Master recommended that the mother was to pay the $1,000. Rule 913, § b provides that the disposition of the case shall be entered on the docket by the clerk. The Committee note to the rule states, “It is contemplated that the disposition order will provide that certified copies are to be furnished by the clerk to all interested persons and agencies.” Of course, the order signed by the judge on 5 September 1974 ordering the mother to make restitution, was a nullity as issued before the time to except to the Master’s findings and recommendations had expired. Rule 908, § e 2. Exceptions were filed the next day, requiring the judge to hear the matter de novo. Rule 908, § e 3. See Matter of Anderson, 20 Md. App. 31, affirmed 272 Md. 85.

It is the conduct of the de novo hearing on the matter of restitution to be paid by the mother, however, which gives us great concern. The trial judge was wrong when he ruled that the State did not have to show that the child had committed the acts resulting in the damages to the wronged party, when he said that the State did not have to prove that the acts were willful or malicious, and when he expressed the belief that the burden of proof did not rest with the State, that “if it wishes, . . . the State can remain moot and not even be present at the hearing. . . .” He thought that, delinquency having been determined at the prior proceeding against the child, all that was required was that the judge be able to find willfulness and maliciousness in the record of the juvenile case. The proceeding before the judge was against the mother. She was not a party to the adjudicatory proceeding against the child. The findings of that proceeding were not res judicata as to her. See Davis v. Frederick Board of County Commissioners, 25 Md. App. 68. As we have indicated, it was necessary that evidence sufficient in law be adduced to establish both that the child had committed the acts resulting in the damages the mother may be required to pay, and that he had done so willfully or maliciously. The judge misconstrued the teachings of Sorrell.

Despite his belief, the judge required the State to produce evidence. The evidence admitted to prove that the child had willfully or maliciously committed the acts consisted of “offense reports”, the authenticity of which was never shown. See Fowler v. Benton, 229 Md. 571, 578. Those reports are not included in the record submitted to us, but the Assistant State’s Attorney, at the direction of the court, read into the record such parts of them as he thought relevant. They consisted of what a police officer reported had been told him by the child and by the victim, what contraband a police officer said had been given him by the child, what an officer said he had found upon investigation, and his conclusions. We are aware of no rule and can conceive of no rationale, in the circumstances under which the offense reports were offered, whereby they were properly admissible. The reports consisted in the main of inadmissible hearsay, in part violated the rule against expressions of opinion, and in part were conclusions. Holloway v. Eich, 255 Md. 591, 597-601; Cogswell v. Frazier, 183 Md. 654, 661; Honick v. Walden, 10 Md. App. 714, 719. We hold that it was error to admit them.

It appears from the judge’s comments that he also relied on the admissions of the child in the answer to the petition filed against him. The answer was not part of the proceedings against the mother. Although by Rule 904 a party may file a pleading denying or admitting all or a part of the facts alleged, if no pleading is filed, the parties are deemed to have denied the allegations. The mother filed no pleading in the action against her, and in fact was served with nothing to which to plead.

The short of it is that counsel below was right when he objected to the admission of the offense reports, when he claimed that the evidence was legally insufficient to sustain the order, and when he took exception to the entire procedure followed, and the court was wrong in overruling his challenges. We reverse the order of 25 September 1974 because the court was clearly erroneous. Rule 1086.

Order of 25 September 197It reversed; case remanded for a new hearing with respect to the liability of the parent.

      . Amendment V: “. . . nor shall any person be . . . deprived of life, liberty, or property, without due process of law;. . . .” Amendment XIV: “. . . nor shall any State deprive any person of life, liberty, or property, without due process of law;. . . .”

      . Article 23: “That no man ought to be . . . deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.” See Horace Mann League of the United States of America, Inc. v. Board of Public Works, 242 Md. 645; County Commissioners v. English, 182 Md. 514.

      . For a discussion of the meaning of due process of law see Hurtado v. California, 110 U.S. 516.

      . Regents of the University of Maryland v. Williams, 9 Gill & Johnson 365.

      . See Maryland Rule 1097.

      . The Juvenile Court issued an order on 21 October 1974 purporting to be upon a petition by the child “together with the oath in forma pauperis” filed by the child. The court ordered that costs of appeal be paid by the State and appointed Mr. Reddick to prosecute “the said appeal on behalf of the Defendant [the child].” It appears, however, that the actual appellant is not the child, but his mother. In any event, on 23 October 1974, the Office of the Public Defender filed a Notice of Appearance, requesting the Clerk to enter the appearance of Mr. Reddick “for the Appellant in the above entitled case.”

      . According to the Revisor’s Note the section is new language derived from Art. 26, § 71A, as amended by ch. 651, Acts 1973. There is no substantive difference between the statute as revised and the repealed statute.

      . “ ‘Child’ means a person under the age of 18 years who is subject to the jurisdiction of the [juvenile] court, and includes a minor.” Courts Art. § 3-801 (e).
      “ ‘Property’ means property of the state, any county, municipal corporation, or other political subdivision of the state, or any of their units, or an individual, receiver, trustee, guardian, executor, administrator, fiduciary, or representative of any kind, or any partnership, firm, association, public or private corporation, or any other entity, including the federal government and any of its agencies.” Courts Art. § 3-801 (w).

      . According to the Revisor the only changes were in style.

      . A juvenile court has exclusive original jurisdiction over an adult who is charged with committing a willful act or omission causing a child to be adjudicated neglected, delinquent, or in need of supervision. Courts Art. § 3-805 (a). An adult so charged may elect to be tried either in the juvenile court or in the criminal court according to the usual criminal procedure. Courts Art. § 3-805 (b).

      . The propriety of the finding that the child was delinquent is not before us. We make the assumption arguendo that such a finding was duly arrived at after a proper adjudicatory hearing.

      . The Report and Order consisted of a printed form, designated as “DJS-1708-9 ’71”, with blanks to be completed.

      . The pertinent parts of the order of 25 September 1974 are set out in Section I of this opinion.

      . Clarence Long, Jr., Esq. appeared on behalf of the State. Charles Finebloom, Esq. appeared on behalf of the Respondent.

      . The proceedings conducted by the master were on 9 April 1974, not 9 April 1973.

      . In open court the State attempted to explain how this amount was determined. It said that the actual loss was $4558 of which $314 was recovered. “That, I think, is where the probation officer gets his total figure.” We note that the master gave the loss as $4275, and that an actual loss of $4558 less $314 leaves $4244, not $4275. The State continued that according to the victim he had received “insurance in the amount of seven hundred and eighty-nine dollars.” (The Master said it was $784). We note that deducting this amount leaves $3455. The State added that the victim “also wished me to inform the Court that that is a subrogated claim and he may have to repay a proportional amount of that. I informed him that it would be up to Your Honor as to whether Your Honor wants to consider the insurance company in this matter.” The court said: “All right, that takes care of determining the amount of the loss [apparently in the stipulated amount of $4275].”

        . Patently this is based on a total loss of $3456.

      . We cannot find in the transcript that the defense had “rested” its case.

      . The transcript does not indicate that the mother was sworn as a witness,

      . We expressly caution that it does not necessarily follow that the presence at a hearing of a party affected is sufficient to establish an effective waiver of the required notice.

      . As we have indicated, however, counsel was assigned by the Public Defender to represent the child. We express no view as to the authority of the Public Defender to represent a parent in such a proceeding even if that parent is indigent. See Code, Art. 27A, § 4.

      . The record contains copies of summonses issued to the child, the mother and the victim to appear on 25 September 1974, to testify in the case of Pet. 3025-J. No other purpose of the hearing is indicated.

      . As we indicated, see note 11, supra, the propriety of the finding that the child was delinquent is not before us. We observe, however, that the rules of evidence applicable to criminal cases shall apply to delinquency hearings, Maryland Rule 912, § c, that the allegation of delinquency must be proved beyond a reasonable doubt, Courts Art. § 3-830 (a), and that “[a] child may remain silent as of right during an adjudicatory hearing on an allegation of delinquency and shall be so advised,” Rule 917. Matter of Brown, 13 Md. App. 625. See In Re Appeal No. 544, September Term, 1974, 25 Md. App. 26.


author: Gilbert, J.,

text:
    CATHERINE L. LINK v. HUTZLER BROS. COMPANY
    [No. 685,
    September Term, 1974.]

      Decided April 8, 1975.

      The cause was argued before Gilbert and Mason, JJ., and J. Dudley Digges, Associated Judge of the Court of Appeals of Maryland, specially assigned.

      John J. Hirsch for appellant.

      Benjamin R. Goertemiller• and J. Snowden Stanley, Jr., with whom were Semmes, Bowen & Semmes on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

Catherine L. Link, appellant, was severely injured when she fell in the Towson, Maryland, department store of the appellee, Hutzler Bros. Company. As a direct result of the fall the appellant sustained a fractured hip bone which was surgically pinned, and the bone was later removed. Mrs. Link filed suit against Hutzler’s in the Superior Court of Baltimore City. There a jury was unable to agree, and the trial court subsequently entered a judgment n.o.v. in favor of the Hutzler Bros. Company. See Md. Rule 563. Aggrieved by the action of the trial judge, Mrs. Link has appealed to this Court.

The record reveals that Mrs. Link testified that on the morning of April 11, 1970 she had gone to Towson with her daughter, son-in-law and two grandchildren in order to shop at the appellee’s store. Mrs. Link observed the “shiny” condition of the vinyl floor covering. She said that she stepped onto an area that appeared to be more shiny than the rest of the floor, when her left foot suddenly slipped out from under her. As she was spun around, so as to face the direction from which she had been traveling, she exclaimed to her daughter that she, Mrs. Link, was falling. Mrs. Link landed on her buttocks with a jolt, and the pain resulting from the fall was so excruciating that she “passed out.” The appellant further testified that her coat flew out so that no part of it was under her when she landed on the floor. Her heel had plowed a furrow through a “swishy” substance like “lard” or “wax”, that had “crusted” on the surface of the area in which she fell. The appellant’s daughter, Mrs. Dorothy Warner, testified that she had observed the waxy substance and, further, that she noted, after the appellant had been removed to the hospital, that the same matter was on the shoe of her mother. The daughter stated, “I knew it was wax.”

The store nurse, while acknowledging that Mrs. Link had said she had slipped on wax, deposed that there was no wax on the floor. Similarly, the porter whose job it was to care for and maintain the third floor, where the accident happened, disclaimed the presence of wax on the floor. The porter said that the floors were “stripped” just after Christmas, 1969, and that two coats of wax were then applied. After that, a polymer floor finishing product known as “Buffable Supertred” was employed when needed. The product is sprayed on the floor, after being diluted with water, by the same type of sprayer “used for windows.” When the mist dries, through evaporation, the floor is then dry-mopped to a sheen. The porter told the jury that he had not placed the “Buffable Supertred” upon the floor for at least three weeks preceding the fall, and he denied the use of wax at any time after its application in December, 1969.

An expert witness produced on behalf of the appellee testified that he was employed by the S.C. Johnson and Son Company, the manufacturer of the “Buffable Supertred”, and that the product was developed by that company within the division that he supervised. The expert stated that “Supertred” consists of only 14% solids and the balance is water, that it evaporates much like lacquer, that it does not crust, and that there is “no skinning.” The expert further said that in order for “Supertred” to dry to a thickness of V* inch, an original puddle of a depth of FA inches would be required, thus clearly indicating that IV2 inches of the product would evaporate. “Supertred” was characterized, by the expert, as “a liquid plastic emulsion” with wax-like properties and an excellent rating with respect to slipping resistance.

The taking of testimony terminated on a Friday. The case was to go to the jury the following Monday. Prior to the submission to the jury of the factual dispute, however, the appellant’s counsel issued a subpoena duces tecum in which he sought to compel the appellee to produce records of all accidents for the year 1970 in Hutzler’s Towson store. The trial judge noted that the testimony concerning accident reports had been given by the nurse on the preceding Thursday. The expert’s testimony concerning the slip resistence of “Supertred” was on Friday afternoon, but that the request for the subpoena duces tecum did not come until Monday morning. Our perusal of the record fails to reveal the actual subpoena duces tecum, and we are, therefore, without knowledge of its actual content. The trial judge, further, observed that the appellant did not avail herself of discovery, and that the information sought to be examined as a result of the subpoena duces tecum might have been obtainable through interrogatories or depositions. The record of the trial does not disclose a proffer by appellant as to wdiat the sought accident records might contain. Lacking a proper proffer, the trial judge was placed in a position of having to determine whether to continue the case while appellant, who, as we have stated, did not avail herself of discovery proceedings, conducted a last minute exploration into the unknown. Not having the proposed subpoena duces tecum, to review, and being without a proffer that the accident records would show similar falls under like circumstances, we are unalde to say that the accident report records would or would not have been admissible evidence. Fowler v. Benton, 229 Md. 571, 185 A. 2d 344 (1962); Leitch v. Anne Arundel County, 248 Md. 611, 237 A. 2d 748 (1968). In any event we see no abuse of discretion by the trial judge in declining, under the circumstances, to continue the trial while appellant availed herself of such belated discovery.

Appellant argues that the trial court should not have granted the appellee’s motion for a judgment non obstante veredicto. The trial judge, in a “Memorandum”, made clear that, notwithstanding “that the evidence and reasonable inferences to be taken from that evidence must be reviewed in the light most favorable to the [appellant]”, the evidence in the case “could not lead a fair minded and reasonable jury to conclude that the [appellee] was negligent.” We, however, have a different view.

A customer of a department store is classified by the law as an invitee. Dickey v. Hochschild, Kohn & Co., 157 Md. 448, 146 A. 282 (1929). See also F. Harper & F. James, The Law of Torts § 27.12 (1956). A landowner or occupier owes to invitees a duty of reasonable care to see that the place is safe, but, he is not an insurer of the invitees’ safety. Honolulu Ltd. v. Cain, 244 Md. 590, 224 A. 2d 433 (1966). The Court of Appeals has adopted the view of the Restatement (Second) of Torts § 343 (1965) which provides:

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.”

Accord, Mondawmin Corporation v. Kres, 258 Md. 307, 266 A. 2d 8 (1970); Honolulu Ltd. v. Cain, supra; Evans v. Hot Shoppes, Inc., 223 Md. 235, 164 A. 2d 273 (1960); Glaze v. Benson, 205 Md. 26, 106 A. 2d 124 (1954); Yaniger v. Calvert Building & Con. Co., 183 Md. 285, 37 A. 2d 263 (1944).

An analysis of the slip-and-fall cases in Maryland reveals a preference for the flexibility of a case-by-case approach rather than the rigidity of a general rule. In Isaac Benesch & Sons v. Ferkler, 153 Md. 680, 139 A. 557 (1927), evidence that the plaintiff slipped and fell in the defendant’s store because defendant failed to allow sufficient time for the recently oiled floor to dry, was sufficient to sustain the jury’s finding of negligence. In Moore v. American Stores Co., 169 Md. 541, 182 A. 436 (1936), the Court of Appeals, in a case where an invitee slipped on defendant’s “greasy” floor, held the defendant liable.

The Court of Appeals in O’Neill & Company v. Crummitt, 172 Md. 53, 190 A. 763 (1937) considered a case wherein Hazel Irene Crummitt had fallen on the O’Neill’s department store floor. Mrs. Crummitt testified that she was a customer of O’Neill’s, and that she was injured when she stepped from an elevator. She said that the elevator had not been stopped at floor level. When she stepped down onto the linoleum covered floor, she slipped upon a “dirty, greasy substance” and fell, landing in the substance. O’Neill adduced the testimony of “several employees.” Each had viewed the linoleum and each testified that “no such substance was upon it, and that it was in its usual condition. . . .” The Court held that the weight and credibility of the conflicting testimony was for the jury.

The Court held, however, in Montgomery Ward & Co. v. Hairston, 196 Md. 595, 78 A. 2d 190 (1951), in an action by a customer of Ward’s to recover for injuries sustained when plaintiff slipped and fell over foreign substances situate on steps of the store, that where the evidence failed to show defendant’s employees caused the substance to be placed there, or that the presence of such substance was known to defendant or its employees, or that such substance was allowed to remain on the steps for an appreciable length of time, the defendant could not be liable.

A plaintiff was not allowed to recover from a department store which she entered almost immediately after it opened for business on a rainy day. The plaintiff sustained injuries from falling down several steps. The basis of her suit was that she saw, after she had fallen, water on the steps. Rawls v. Hochschild, Kohn & Co., 207 Md. 113, 113 A. 2d 405, 62 A.L.R.2d 124 (1955).

In Casey v. Roman Catholic Arch., 217 Md. 595, 143 A. 2d 627 (1958), the plaintiff slipped and fell on the slippery, newly waxed floor of the defendant church. The Court of Appeals, citing Isaac Benesch & Sons v. Ferkler, supra, declared that the trial court correctly submitted the case to the jury, since it could not be said “that there was no evidence of negligence.”

Later in Moulden v. Greenbelt, 239 Md. 229, 210 A. 2d 724 (1965), the Court had before it a case wherein Moulden claimed injury resulting from a fall occasioned by slipping on a “green bean” that was on the floor. The Court said at 231-32:

“It is established law in this State that a proprietor of a store owes a duty to his customers to exercise ordinary care to keep the premises in a reasonably safe condition, and he will be held liable for injuries sustained by a customer in consequence of his failure to do so. Nalee, Inc. v. Jacobs, 228 Md. 525, 180 A. 2d 677 [(1962)]; Evans v. Hot Shoppes, Inc., 223 Md. 235, 164 A. 2d 273 [(I960)]. However, the proprietor of a store is not an insurer of the safety of his customers while they are on his premises. ... To recover in an action for damages, the plaintiff must show that the defendant was guilty of negligence which produced the particular injury alleged. . . . The burden is upon the customer to show that the proprietor created the dangerous condition or had actual or constructive knowledge of its existence. Lexington Market v. Zappala, 233 Md. 444, 197 A. 2d 147 [(1964)]; Montgomery Ward & Co. v. Hairston, 196 Md. 595, 78 A. 2d 190 [(1951)].”

The Court then quoted with approval Orum v. Safeway Stores, 138 A. 2d 665 (D.C. Ct. Mun. App. 1958), wherein it was held that there was no evidence showing how long a bean had been on the store floor, nor that any employee of the store had seen it or should have seen it in time to remove it or warn the customer.

In Moulden, Zappala and Hairston, all supra, the Court was concerned with the presence of admittedly foreign matter on the floor. Moulden dealt with a “green bean” that could have been dropped by another customer; Zappala an oil slick that was not there when the injured party parked her car in the parking garage, but was present when she returned; and Hairston with oil on the floor in the dry goods and clothing department. All three cases turned on lack of notice to the store employees. The instant case, however, differs markedly from the foreign object, notice type of cases. As was stated in Annot., “Liability of proprietor of store, office, or similar business premises for fall on floor made slippery by waxing or oiling”, 63 A.L.R.2d 591, 620 (1959):

“The notice issue is somewhat less frequently litigated in cases involving injury from falls on waxed, oiled or similarly treated floors, than in cases involving injury from falls due to other floor conditions. Normally, it is the proprietor of the business operated on the premises who is responsible for such treatment of the floors therein, and some courts have taken the view that it is necessarily true that he has knowledge of their condition.”

In the case now before us the trial judge concluded that because the “mound” on which the appellant slipped was translucent and could only be seen by a hands and knees inspection, it would be “totally unreasonable” to hold the appellee responsible. Appellant’s testimony, however, if believed, supports a rational inference that appellee or its employees negligently applied the translucent substance to the floor. The jury could find from the evidence that appellee actually created the dangerous condition as a result of its negligent application of the floor surfacing material. “[T]he fact that a condition of a floor was made dangerous by the act of an employee without the knowledge of the owner of the premises . . . does not relieve the storekeeper of liability if such waxing or oiling was done in a negligent manner.” 62 Am. Jur. 2d Premises Liability § 222 (1972).

The testimony of Mrs. Link and her daughter is that Mrs. Link slipped on what looked like a mound of wax. The Hutzler floor was admittedly waxed approximately four months before the accident, sprayed with “Supertred” three weeks before, and buffed the preceeding day. We think the testimony of the appellant and her daughter sufficient to have taken the case to the jury. Once there, the jury could have disbelieved the nurse, the porter and the expert, and believed the appellant and her daughter, or vice versa. The porter’s statement concerning his waxing, application of “Supertred” and his buffing of the floor was, like the testimony of Mrs. Link and Mrs. Warner, a question of credibility. The fact that the expert testified that his product had a high rating for being skid-free does not indicate that the accident could not have happened in the manner described by appellant and her daughter. The expert’s testimony, as we see it, that “Supertred” dries without a crust or skin, merely contradicts the evidence of the appellant and her daughter, it does not destroy it. Direct evidence in conflict with an inference properly drawable from other evidence, does not eradicate the inference. The matter becomes a question of what weight the trier of fact will attribute to each.

Wax is no stranger to linoleum or tile. It is, generally speaking, applied to floors for protective as well as for aesthetic purposes. The case of Miller v. Payless Drug Stores of Washington, Inc., 379 P.2d 932 (Wash. 1963) is apposite. In Miller the plaintiff, walking down the aisle of the defendant’s drugstore, slipped and fell, leaving a mark on the floor some fifteen inches long and as wide as a finger. The plaintiff opined that there was an excess of wax on the floor, but defendant countered by showing that its floors were not covered with wax, but by a polyethylene floor surfacing product. The Washington Court, finding the evidence sufficient to reach the jury, rejected this nicety of distinction, declaring:

“There is no magic in the use of the word ‘wax’ in a case of this type. It is a generic term employed by all, and in ordinary usage describes the act of applying a temporary surfacing material for the care and maintenance of floors. Used as a noun, it generally describes the substance or compound so applied to the floor surface. Whether or not such a compound contains any of the substances known to the chemists, physicist or biologists as a wax, we think would be immaterial. We are doubtful if many housewives, or department store managers for that matter, know that when the word ‘wax’ is employed in general usage, its restricted meaning describes any one of a number of substances of plant ór animal origin containing esters, frequently fatty acids and higher hydrocarbons and distinguished from fats as containing esters of higher monohydroxy alcohols instead of esters of glycerol.
It is well known that the word ‘wax’ is frequently employed as a verb by housewives to describe their actions in applying a floor surfacing compound to the floors of their homes and as a noun to describe the compound.”

The appellee in the instant case also argued that the testimony of the appellant and her daughter was inconsistent, pointing to alleged discrepancies among the answers to the written interrogatories, the depositions and the in-court testimony. Such discrepancies, however, are matters for the jury to assess in attaching credibility, vel. non. Neither this Court nor the trial court enters into the weighing of evidence or assessing credibility, absent a showing that the testimony of a witness is so self-contradictory, inconclusive or uncertain as to lack probative force. Balto. Tr. Co. v. Presberry, 233 Md. 303, 196 A. 2d 717 (1964); Kaufman v. Baltimore Transit Co., 197 Md. 141, 78 A. 2d 464 (1951); Slocum v. Jolley, 153 Md. 343, 138 A. 244 (1927). See also Kucharczyk v. State, 235 Md. 334, 201 A. 2d 683 (1964); Grady v. State, 24 Md. App. 85, 329 A. 2d 726 (1974); Bailey v. State, 16 Md. App. 83, 294 A. 2d 123 (1972). The discrepancies to which appellee alludes are not of such a nature as to require the invocation of Balto. Tr. Co. v. Presberry, supra, and its progeny. The Court of Appeals has held that where there is a conflict between a witness’s pre-trial testimony and the in-court testimony, the matter is for the jury to resolve. Campbell v. State, 203 Md. 338, 100 A. 2d 798 (1953).

Having determined that the evidence adduced by the appellent was legally sufficient to carry the case to the jury, it follows that the trial judge erred in granting the appellee’s motion n.o.v.

Judgment reversed and case remanded for a new trial.

Costs to be paid by the appellee.

      . We glean from the record that “skinning” means a hardening or forming of a skin-like layer on the surface while fluid remains below the surface.

      . Restatement (Second) of Torts § 343, Comment a, states that § 343 should be read together with § 343 A, which limits the liability imposed by § 343. Section 343 A involves known or obvious dangers on the premises, and is, therefore, inapplicable to the dangerous condition existent in the instant case.

      . For discussions of slip-and-fall cases in other states see Comment, Premises Liability — The Texas Rule of Liability of Owners and Occupiers of Land for Injuries Sustained by Business Invitees on the Premises — Revisited and Reconsidered, 5 St. Mary’s L.J. 800 (1974); Comment, Land Occupiers Liability to Business Invitees for Slip and Fall Injuries: Recent Developments in Iowa Law, 54 Iowa L.J. 659 (1969); Note, Supermarket Liability: Problems in Proving the Slip-and-Fall Case m Florida, 18 U. Fla. L. Rev. 440 (1965).
      The Florida writer indicates that the three bases for liability in slip-and-fall cases are:
      “(1) that the owner or his employees or agents created the dangerous condition, or
      (2) that the owner or his employees or agents had actual-notice of the dangerous condition and sufficient time in which to remedy it, or
      (3) that the condition existed long enough to have been discovered and remedied (constmctive notice).” 18 U.Fla.L.Rev. 440, 441 (1965).

      . Compare Domain v. Friendly Ice Cream Corp., 343 Mass. 770, 178 N.E.2d 27 (1961) (recovery barred where plaintiff testified that she fell when her heel hit “something slippery” which she thought was wax, but no evidence was found at the place of the fall of any accumulation of a substance chargeable to the defendant’s negligence) with Tua v. Modern Homes, Inc., 64 N. J. Super. 211, 165 A. 2d 790 (1960), aff'd 33 N. J. 476, 165 A. 2d 798 (1960), (plaintiff fell on spot covered with waxy substance which had to be scrubbed from her shoes).


author: Lowe, J.,

text:
    IVAN MORGAN et al. v. METROPOLITAN FUELS, INC. MOVALCO, INC. v. METROPOLITAN FUELS, INC.
    [No. 732,
    September Term, 1974.]

      Decided April 8, 1975.

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

      Albert D. Brault, with whom were Brault, Scott & Brault on the brief, for appellants Ivan Morgan and Harriet Morgan.

      Arthur V Butler, with whom were Thomas R. Pahys and Paul D. Murphy on the brief, for appellant Movalco, Inc.

      J. Joseph Barse for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The relatively new home of Ivan and Harriet Morgan, appellants, burned to the ground approximately one year after they occupied it. Ivan Morgan, a carpenter by trade, had constructed his home in Potomac, Maryland. Having built other homes he chose to act as his own contractor and let subcontracts for the various phases of the work. Among those subcontractors was Movalco, Inc., which subcontracted for the design and installation of the heating system.

The two furnaces installed were vented by a stack pipe approximately six feet long, about four feet of which paralleled in close proximity the floor joists supporting the first floor den. Although the joists were covered with a basement ceiling composed of sheet rock or gypsum board described as fireproof, testimony indicated that the exhaust vent pipes were within five inches of the floor joists. From a plethora of expert testimony it would be fair to summarize the opinions expressed as agreeing that eighteen inches was the preferred minimum safe distance such exhaust pipes should be located from combustible material unless a heat shield was installed between the pipes and the combustible materials (wood joists in this instance). No such shield was installed. It was further testified that discharged flue gasses in the stack pipe from furnace to chimney, coupled with the room temperature, would fluctuate between 570 and 670 degrees gross temperature which exceeds that necessary to ignite the combustible joists. The lapse of time of approximately one year between installation and the burning of the building was explained as being the length of time necessary for the wood in the floor joists to dry out completely.

Suffice to say that the evidence was ample for a jury to conclude that the fire was caused by the close proximity of the exhaust stack pipes to the combustible wooden floor joists. It is not surprising then that a Montgomery County jury delivered a verdict favorable to the Morgans and against Movalco, Inc. which, after second thoughts, has dismissed its appeal from the judgment rendered on that verdict by Judge Shure of the Circuit Court for Montgomery County. Movalco has appealed, however, (as do the Morgans) from a judgment n.o.v. granted by Judge Shure in favor of Movalco’s co-defendant below, Metropolitan Fuels, Inc.

Metropolitan had been engaged by Movalco to install the fuel tank, run the oil lines from tank to furnace, make all oil line connections, make all electrical connections, and finally, to start the furnace “to make sure it ran properly.” It was admitted on behalf of Metropolitan that “when the employee is there to check out the system and to see if it is running properly, he is to determine if it will run safely so as not to create a fire hazard.” The scope of the “duty” owed by Metropolitan to the appellants is the focal point on appeal.

Appellants contend that appellee Metropolitan owed the Morgans a duty which arose from the fact that Metropolitan contractually undertook to perform a service. Appellants acknowledge that such duty does not arise because of the entry into the contract, but rather having undertaken “to see if [the furnace] will run properly . . . [and] . . . safely . . .” Metropolitan assumed liability “for physical harm resulting from [its] failure to exercise reasonable care to perform [its] undertaking . . .”. Restatement of Torts, Second, § 323. They analogize an example given by Professor Prosser in his work on Torts, (4th ed.) § 56, at 347 of a “landlord who makes repairs on leased premises, although he is under no obligation to do so . . . .” Professor Prosser states that the landlord in that case “assumes a duty to his tenant ... to exercise proper care to see that the repairs are safe, or at least that the tenant is not left in ignorance of the danger.”

While the trip was somewhat circuitous, appellants now arrive at their destination. Their argument thus far seems to imply a duty on Metropolitan to investigate all aspects of the initial installation by Movalco. Not necessary, say appellants. The service men for Metropolitan who actually fired the furnace for its test run admitted seeing the pipe and, it follows by implication, the pipe’s proximity to the cellar ceiling joists. “I didn’t even think about it. I just looked up and the chimney was hooked up and that was all I was concerned about,” said the service attendant. Appellants note that Metropolitan’s President had expressed an opinion based upon thirty years experience that the flue pipe should not have been closer than eighteen inches to the floor joists. They then attempt to link that testimony with the service attendant’s actual observation of the five inch differential. Their conclusion: there was a duty on Metropolitan to inform appellants of the faulty installation by Movalco. Having failed to warn them appellants say, Metropolitan breached its duty and must share the blame and the $125,000 judgment with Movalco.

Appellants argue further that they hardly need have taken the longer route of finding a duty from an assumed undertaking, but rather could have relied upon a Court of Appeals opinion remarkably similar factually, Klein v. Dougherty, et al., 200 Md. 22. The “et al.” appellee there was the “Allied Oil Burner Service.” The facts are concisely recited at 26:

“Milton Klein and wife constructed a home on Wirt Avenue in Baltimore. He acted as general contractor and let subcontracts for the various phases of the work. When the furnace was installed by Mr. Andrew Dougherty, the smoke pipe was put in a hole in the chimney without a hole being cut through the tile lining of the chimney. When the furnace was started by Allied Oil Burner Service there was no way for the smoke to escape in the chimney. When Mr. Klein, the appellant, drove by the house he saw smoke coming from an exhaust vent in the kitchen. Upon investigation it was found that the interior of the house was covered with soot. As a result, the equitable plaintiff paid the Kleins $1,100.00, and suit was entered against the appellees on a declaration containing a count in contract and a count in tort. The trial judge found that all the parties in the case were negligent and finding the plaintiffs, appellants here, guilty of contributory negligence, a judgment was rendered in favor of the defendants, appellees.”

The Court of Appeals reversed the lower court and entered judgment for the home owner. Appellants find significant that Allied Oil Burner Services was held in as a co-defendant even though Mr. Dougherty installed the furnace and connected the flue pipe. It was Allied there which, like Metropolitan here, “undertook to install the oil tank, connect the oil line to the burner, run the filling vent, prime the pump, start the burner, adjust the fire, and check the fan and safety controls.” Id. at 29-30.

While agreeing with appellants that Klein is remarkably similar factually, we find it readily distinguishable. The primary, if not sole, concern of the Court of Appeals in Klein was whether the. owner-contractor was contributorily negligent. In that regard, while holding that there was no obligation on the part of Mr. Klein to specifically instruct Mr. Dougherty in the installation, the Court said “We also see no obligation on the part of Mr. Klein to have inspected to see whether Allied had properly turned on the furnace.” Id. at 30.

A second distinguishing factor responds to the longer route taken by appellants of “duty by assumption of the undertaking.” Although the damage in Klein arose from faulty installation, the negligence was ascertainable in performance of the duty contracted for, viz. starting the fire in the furnace. The testimony in Klein upon starting the furnace was:

“You check the draft from the color of the flame .... if you do not have proper flame you do not have proper combustion. There’s instruments to be used in checking the draft. ‘When asked the question: ‘When a furnace is started up and you open the furnace door and look at the color of the flame can you see whether there is any draft? ’, he answered: ‘Yes.’ He further testified that he could not install a pipe in a chimney without seeing that it was opened or closed. A furnace man was bound to see that a furnace has the proper draft.’ ”

There the problem was not only easily observable by a reasonably cautious service mechanic but was precisely the problem the avoidance of which brought about his engagement.

In the present case, Metropolitan would be liable under the Klein reasoning only if it contractually undertook to inspect for Movalco negligence. Appellants cite Otis Elevator v. Embert, 198 Md. 585 for the proposition that “ . . . the presence of a known danger, attendant upon a known use, makes vigilance a duty,” Otis, supra, 198 Md. at 598, citing McPherson v. Buick Motor Company, 217 N. Y. 382, 390. However, as the Court phrased the operative test:

“The decisive question is, what is the scope of [the] undertaking.” Otis, supra, 198 Md. at 600.

We find here as did the Court of Appeals in Otis that “There is no evidence that [Metropolitan] actually undertook more than it contracted to undertake.” Metropolitan contracted to see that the furnace would run properly and safely. It did that. Some weeks or months later the Morgans moved in and again the furnace burned “properly and safely” for over a year. Metropolitan did not contract to review Movalco’s installation as a guarantor that Movalco had properly installed the furnace, nor did it contract to insure that the furnace would burn properly and safely for all time.

A service maintenance man could hardly be held to a degree of expertise not even exemplified by a heating engineer called in by the Morgans after they had assumed occupancy. This specialist rendered a written report to the Morgans which failed to contain any reference to the proximity of the flue pipes to the ceiling. Nor will we follow appellants’ theory imparting by operation of law the expertise of Metropolitan’s president shown to have been acquired from 30 years experience, to the company’s field representative, the service attendant on the scene. There is no basis for concluding that he had knowledge or should be charged with knowledge sufficient to recognize Movalco’s negligence from casual visual observation, when that was not even the case of a professional consulting engineer in the field of heating. We think appellants demand too much. Movalco must bear responsibility for its defective installation — alone.

Judgment affirmed.

Costs to be divided between the appellants, Morgan and Movalco.

      . It is well-established that in considering whether or not it was error for a trial court to grant or deny a motion for directed verdict or motion for judgment n.o.v., a plaintiff is entitled to every favorable inference.^ In considering such a motion we must assume the truth of all credible evidence and of all inferences fairly deducible therefrom and consider them in the light most favorable to the party against whom the motion is made. Upon such consideration if there is any competent evidence, however slight, tending to support the plaintiff’s right to recover the case should be submitted to the jury. It is only where reasonable minds could not differ that the plaintiff is not entitled to recover that the matter is one of law for the court. Montgomery Ward & Co. v. McFarland, 21 Md. App. 501; Belleson v. Klohr, 257 Md. 642; Miller v. Michalek, 13 Md. App. 16, cert. denied, 263 Md. 717; Buchanan v. Galliher, 11 Md. App. 83, cert. denied, 261 Md. 722; Burns v. Goynes, 15 Md. App. 293, cert. denied, 410 U. S. 938, 266 Md. 737; Lauer v. Scott, 12 Md. App. 555, cert. denied, 263 Md. 716; Hagan v. Washington Suburban Sanitary Commission, 20 Md. App. 192.
      It need hardly be added that our recitation of facts has been summarized with that admonition in mind.