*1 LINES, TRUCK INC. et WILLIAMSON al.
v. BENJAMIN 198, September Term, [No. 1965.] *3 13, 1966. September Decided argued Hornby, cause was before originally Hammond, ObpBnhbimer and Asso- JJ., J., McWilliams, Rainb, and n ciate Circuit, assigned, specially of the Third Judge Judicial OppBn- Hornby, Marbury, reargued
-and before Hammond, and JJ., J., spe- McWilliams, Rainb, and hbimer, BarnBS assigned. (cid:127)cially with whom was arguments), both (on
Hamilton O’Dtmne brief, on for O’Doherty appellants. A. .Patrick with whom were arguments), both Priedman (on Thomas V. brief, for the appellee. & .Rosen Esterson of the Court. opinion majority J., delivered BarnBS, Marbury as- J., specially and JJ., Raine, McWilliams, at J., McWilliams, Dissenting opinion by signed, dissent. 16, -page infra. below Benjamin, C. The appellee, Henry
n against of Baltimore City Court Superior an action tractor-trailer, Inc., Lines, aof owner Truck Williamson to recover operator, its B. (Sasser), against William Sasser n damages medical expenses to the injuries plaintiff, for personal n auto- plaintiff’s losses, damage and property other Route Maryland occurring an accident resulting mobile n be- tried originally The action was 1963. February on3 could not jury jury. and a After the Manley Chief Judge -fore n agree denial the lower and after the discharged, and was n court non obstante judgment of the defendants of motions *4 n veredicto, was, a trial and the action jury waived the parties counsel, trial who judge submitted to the of agreement the 'by for the upon trial determination jury original conducted the 'had trial court rendered taken. The testimony previously record and against and both defendants in favor of the .a verdict on for amount was made absolute this $6,500.00. for Judgment timely filed a from appeal and the defendants May to Court. judgment that this to the amount of the ver- challenge appeal There is no
n dict the negligence of defendants. or to finding primary however, that earnestly contend defendants-appellants, ‘The recovery himself from disentitled plaintiff-appellee guilty negligence own conduct contributory a matter of and assumed risk which materialized. very law A.M. in accident occurred between 4:00 and 5:00 14, 1963, a morning of distance south Glen February good Burnie in 3. Anne Arundel Route Route County Maryland 3 is linking of a north-south Baltimore part major Richmond, Virginia. right with The accident occurred in the was, hand northbound “slow” lane where limit posted speed accident, at the time 60 miles hour automobiles per and 55 miles hour for trucks. At this median per point strip between the lanes and north and southbound is wide extremely (which southbound lanes have no accident) relation to the are visible ato northbound motorist.
The two northbound lanes each are twelve feet wide. These are separated aby white dashed line surfaced and are with black macadam. is top There a shoulder on both the east side and the west of this highway consisting side northbound of sand and and gravel, varying width ten feet. The eight to highway does not or to right curve the left for a quarter of a mile south accident, of the scene of the but from that point the road bottoms, proceeds downhill at a 25 degree grade, then begins 30 degree incline south approximately 500 feet point of impact.
The plaintiff was alone and was his 1953 operating Stude- baker northbound in the hand lane right returning from Gam- brills in Anne Arundel County to his home Baltimore City. His automobile was with equipped standard headlights, tail lights and license plate light. These were all lighted func- tioning at all normally times material this case.
While the plaintiff was proceeding uphill toward the scene accident, automobile, the hood of his without prior warn- ing, suddenly flew up buckled over the cab of his Stude- baker, obscuring his The plaintiff vision. had never had such trouble with the hood before. He pulled slowly stop in the lane, shoulder, very close approximately feet from the bottom of the hill. The plaintiff had traveled Route a3 number of times before. He knew it was heavily traveled and was a high-speed He expressway. also knew there were shoulders at that point.
ó
As soon he had set his stopped, plaintiff emergency brake and from the onto alighted right door of his automobile investigate to full shoulder of the road. He unable he was width of the shoulder it was dark and pitch because the shoulder afraid of He then stood on walking into ditch. sure minute northbound traffic to be observing about one before he his automobile could see motorists approaching the hood. lower and secure ventured out into the safely on the pass automobiles He three northbound saw two or in lane say he which but could not left of his vehicle stopped a northbound tractor- then observed had it. He they approached lane, left it cut over to the in saw right trailer approach his auto- to the rear of yards it than lane when was better the automo- From the by passing it. pass safely mobile tractor-trailer, assumed that his auto- the plaintiff biles and the and he then be- motorists be seen approaching mobile could of his While on the side right hood. gan to to secure the try and used force to automobile, the hood grabbed he the top cab of his vehicle. it had buckled over the free it from where down. Because of the pushed the front and then He walked hood, go of the hood would not down the front buckle in the his removed belt se- far Fie then and was from latching. latch on the under spring side one end of the belt to cured of the hood. n ' latch, to the spring he was the belt tying While the tractor-trailer first headlights saw for the time the aof Lines, Inc., one-quarter approximately Williamson Truck could of the motor. The mile the roar away, heard or moving this tractor-trailer was lane not determine which his automo- in front of He then bent down its rate of speed. bile, and hooked through grill end of belt stuck the other the motor He could hear to tie the belt. it once in an effort He as worked. tractor-trailer approaching of the approaching in order to a better get down the hood then raised up pull he noticed the tractor-trailer it when hold on the belt to tie lane close behind hand It then second time. was front of The right to the left his automobile and lane. bearing automo- of the plaintiff’s the left rear the tractor-trailer struck bile, him to the knocking the plaintiff, in turn struck *6 the (called by and what shoulder of the road into right Sasser “ditch”, a but hostile called plaintiff witness) originally as a The plaintiff spent of bank.” explained “sloping later was the the in attempt less in his automobile his than two minutes front of to secure the hood.
Sasser, the driver of the struck the tractor-trailer northbound traveling that he was plaintiff’s automobile testified in 50 miles hour right speed the of the at a of per lane automobile 400 when he noticed for first time the plaintiff’s the plain- was feet from the feet ahead. When the tractor-trailer vehicle, that the tiff’s cut to the left lane. testified he Sasser to swerve the left lane when plaintiff’s automobile into appeared the feet was tractor-trailer was either a few or two approaching or did reduce his lengths speed three automobile He not away. from the time first saw the automobile until the plaintiff’s the nor or time of did he the electric air horns impact, sound with Although which the tractor-trailer is there were equipped. ahead, no vehicles on road did other the not continue Sasser to watch in if the vehicle the road or determine it was standing or moving at time. any Werner, an
Corporal officer of experienced investigating the Police, Anne Arundel the County was officer. He investigating testified regard that he received a call in telephone to the acci- dent at 4:55 A.M. and arrived at the scene approximately five minutes thereafter. Upon it arrival was a clear night, the road was dry. There were no obstacles or curves in the road to obstruct vision a of a mile approximately quarter ap- the scene He proaching located the point northbound. im- pact from major the in part the debris lane of right highway. automobile of the plaintiff was standing in lane with both doors jammed He shut. identified the 120 foot skid marks of the beginning tractor-trailer 30 feet before lane, impact the slow then into the (right) fast (left) lane then back into the slow lane again (right) up tractor then ahead of plaintiff’s automobile but on the east shoulder of the highway.
It is clear from this evidence that there was sufficient evi- dence to support finding that there primary was negligence upon part of the driver the tractor-trailer. The appellants As the contrary. in this
(defendants) do contend Court indicated, are (1) we have the two contentions here already a matter plaintiff guilty contributory negligence was event, in- risk incurred the any law (2) of the recovery and is barred from by application volved maxim, concluded that these injuria. volenti non We have fit the judg- unsound contentions of are and that appellants lower court must be affirmed. ment of the
(1) guilty In the contention considering law, are certain as matter of there negligence contributory keep of law which we should general principles well established Wig Court in mind. enunciated this recently were They *7 Collins, 228, 237, A. State, 232 gins v. to the use Md. 192 of Court, 515, for the stated: Horney, Judge 2d 520-521 (1963). of contributory negligence absence or “The presence For Jackson v. a generally question jury. is 379, wood, 2d It is (1946). only 186 Md. 47 A. 81 cannot differ the minds of reasonable persons where in deciding question is justified that the court Corp., Aviation 187 Brown a of law. v. Bendix matter 613, Thomas v. Baltimore A. Md. 51 2d 292 (1947); 262, Co., 127 128 (1956); 211 A. 2d Transit Md. 126, 222 A. 2d 666 Simpler, (1960). Md. 158 Boyd v. of or from acts conduct if is no evidence And there or infer negligence minds could find reasonable it would be error of part plaintiff, on the from the negligence of contributory withdraw the issue Needles, Lindenberg v. 203 of the jury. consideration Thomas v. Baltimore 2d (1953); Md. A. Co., supra." Transit in this as appellants contended below—and defendants of Code (1957) violated the provisions the plaintiff
Court—that this caused and that violation (b) (a) 66y2, Art. §244 This of the damages. or to the section plaintiff’s contributed as follows: is Code Maryland of a outside highway In
“(a) general—Upon any shall stop, no person, business or residence district vehicle, attended or whether any leave park, standing unattended, main- or improved or or upon paved it is practical traveled of the when part highway such vehicle off such stop, part or so leave park, a clear and unob- every said but event highway, feet of such part structed width of at least twelve (12) shall be vehicle standing such opposite highway and a left for vehicles clear the free other passage from a dis- view of such vehicle be available stopped such upon high- tance 200 feet each direction way. vehicles—This section shall not
“(b)
ap-
Disabled
to the
which is disabled while
ply
any
driver
vehicle
or
or main-traveled
paved
improved
portion
of a
in such manner and to such extent that
it is impossible to avoid
leav-
stopping
temporarily
such
in such
ing
disabled vehicle
position.”
It is first contended that
the plaintiff’s automobile was not
a “disabled vehicle” so as to come within the exclusion of §244
(b), and
is
our
in Wiggins
reliance
decision
v.
placed upon
State,
Collins,
indicated,
supra,
use
in which we
in a
case involving the
of an automobile
stopping
to remove accumu-
windshield,
lating snow and
ice
that is
“generally
held that the
provisions of
statute
disabled
exempting
vehicles
*8
from the
of
prohibition
are
stopping
highway
ap-
not
when
plicable
the
has been
stopped
vehicle
the main travelled
part of such
highway
the
of
purpose
removing an obstruc-
239,
tion from the windshield.”
at bar
it from
mechan-
distinguish
Wiggins and because of the
ical
in
failure
the catch
in
with
holding
together
the hood
place
the
indicated,
surrounding circumstances
already
question
fact was
as
to whether
presented
plaintiff’s
the
automobile
such a
vehicle”
as
“disabled
within the
meaning
(b)
§244
to malee it
to'
“impossible”
“stopping and temporarily
avoid
v.
leaving such disabled vehicle in
Tuhn
position.”
such
Cf.
Clark,
441, 41
241 Iowa
W. 2d 13
hereto-
(1950).
N.
We have
fore
mean
construed
word
in this
“impossible”
the
subsection to
“obviously impractical
the
than
circumstances” rather
“absolute,
meaning
Hop-
an
physical impossibility.” Joppy v.
kins,
58,
52,
545,
also
231 Md.
188 A. 2d
549 (1963). See
81,
Coastal Tank
Kiefer,
v.
A. 2d
194 Md.
790 (1949).
Lines
The
analogous
situation at bar is somewhat
to situations
which a
has
or
motorist
a flat
the
is dark
tire when
vision is made difficult
the
the
by
issue of whether
fog
vehicle is a “disabled vehicle” within the
stat-
meaning of the
Bowman,
ute has been submitted to
Putnam
the
v.
jury. See
Boss,
89 N. H.
Dare
Even automo- plaintiff’s that bile was not a “disabled vehicle” within the meaning §244 (b), the question whether plain- it was for the “practical” tiff to have or such off such stopped, parked “so leave vehicle part of said highway” was to be required determined provisions supra. (a). Kiefer, Coastal Tank Lines v. See §244 court, trial think, properly we submitted both issues After jury. trial jury disagreed discharged, and was court considered issues of trier undoubtedly both fact as the facts, of the and resolved them against defendants. It was when pitch black rose ob suddenly up hood struct There that completely plaintiff’s vision. was evidence the hood was broad so when in an it upright position would his left permitted have have looked out window there drive left shoulder. The knew were ditches he was along highway properly apprehen sive that drive into unless he his auto might brought one mobile to a This was not stop. apprehension misplaced situation which suddenly plaintiff. Although confronted the
11 word, there of that usual meaning there was no “ditch” shoulder far from of the edge a incline not was substantial re which could have highway easily on the east side of the he his automobile if plaintiff sulted severe injury down the embankm gone had distance and misjudged proper Considering the evidence most favorable ent.1 we should evidence—-(as the favorable inferences do should have when the defendants contend that the verdict favor, supra, Ford v. been directed in see Wiggins, their 534, 540, Bradford, Md. A. 2d 490 (1957))—we cannot no a reasonable say that there was evidence from which man could conclude that in the “obviously impractical it was * * * circumstances to avoid in such or that stopping position” it was not or so such off “practical stop, park leave vehicle were, therefore, such of said part highway.” Those issues prop erly submitted to the trier of fact for determination.
In addition to the facts mentioned in already discussing effect Art. 66J2, §244, there are other facts which indicate us that we cannot that the was of con- say guilty tributory as a matter of negligence law.
The plaintiff was faced with an and sudden emer- unexpected He realized gency. that his automobile in a was of dan- place ger, but he also realized that it was a clear night, the lights automobile, including the tail lights and the plate license were lights, burning and visible one-quarter a mile down the highway. He had the right to assume that mo- oncoming photograph 1. Plaintiff’s Exhibit 5—a at place appears of the accident—shows the incline with what to be grade. testimony a substantial Sasser’s It tends to confirm this. is as follows: Benjamin accident, immediately Where was Mr. “Q. after you Yes, partially legs if know? A. in the ditch with his up, edge down in the ditch from his waist off on the of the shoul- der. you speaking slope ditch “Q. What are of? shoul- of the A. der. you speaking of, This “Q. ditch that are that ditch off is ditch, slope shoulder? A. It is not it is a shoulder road. ago? You used the ditch A. I didn’t mean “Q. term a moment ditch, sloping it was of the bank.” *10 him as striking and would avoid lights torists would see his in hand lane which to room in the fast or left there was ample however, not, assump- this depend upon his He did vehicle. pass on test. He stood to a pragmatic tion but put assumption one minute ob- for approximately the shoulder of the mo- be that approaching traffic to sure the northbound serving it. He ob- striking and would avoid could his vehicle torists see and, more one automobiles importantly, served two or three of his automobile. stopped on the left safely tractor-trailer pass in had been proceeding The observed tractor-trailer originally from yards lane then when it was more than 100 automobile, safely to the left lane and the rear of his it cut over of his auto- Thus reassured that the passed lights vehicle. by approach- mobile could be seen and his automobile avoided fix We traffic, to the hood. ing attempt he then proceeded time every not think to leave his work required do that was vehicle, held of being guilty there was an to avoid approaching of matter The entire issue contributory negligence as a law. the trial for the trier of fact and negligence was contributory in a defendants court was correct verdict directing issue. upon this from
The case at bar is in our quite distinguishable, opinion, our A. 2d decision in Martin v. 207 Md. Sweeney, Martin, relied on In the plaintiff (1955), appellants. in facing remained a truck which was on a stopped rainy night lane oncoming expressway traffic that of the part fast where her had skidded earlier. The did not vehicle headlights know whether or not the of her truck were lit. She saw the slow lane with and she knew that was traffic occupied other in the lane in her might vehicles vehicles pass truck was continued to sit in the truck standing. although She she oncoming knew that vehicles would reduce their speed at the her rapidly slippery highway place occupied by truck in order to a turn The negotiate detour. required by truck was not disabled and could have been moved with little difficulty from the We held that place danger. under those court in circumstances the trial directed the verdict properly favor of the defendant because of the plaintiff’s contributory bar, negligence as matter of law. In the case at vehicle lane and was a clear the slow there stopped could lane which the tractor-trailer have and unobstructed lights plaintiff’s the road was not passed, slippery, could and had been seen by ap- were on and be seen vehicle sufficient time enable them proaching pass vehicles for in safety. automobile plaintiff’s
(2) contend, indicated, that the appellants plain- we have tiff case is barred from in this because of the doctrine recovery maxim, of incurred risk resulting application of the “volenti non allied doctrine injuria.” Although closely fit People’s Drug our contributory negligence, predecessors *11 172, Windham, v. 178 A. Md. 12 2d (1940) Stores 532 have out not pointed that the doctrines are the same. There is a distinction risk of in- between the doctrine of assumed and that risk, all, curred the former if a being at to situation applicable, in which there is a contractual relation between the in- parties volved, all, being latter if at applicable, when there is no such contractual relationship. Offutt, Court,
Judge for the stated: “The doctrines assumed risk neg- contributory ligence allied, are closely they are but not the same thing. The doctrine assumed risk implies intentional exposure a known danger, to which may or not be may of contributory true As negligence. stated in A. I.L. Torts, Restatement ‘A 893: person sec. who knows
that another has created a danger or is a dan- doing or gerous act land or chattels of another are dangerous, and who nevertheless chooses to enter up- on or to within remain or permit his things to remain within area of risk is not entitled to recover harm him unintentionally caused to or things his by or the other’s conduct the condition of the prem- ises, except where other’s conduct constitutes a him breach of or a duty to to third person and has a created situation which it is reasonably neces- a risk sary to undergo order protect a or An a avert harm.’ application that rule to facts 14 in this to those involved case is analogous
somewhat in Illustration 9 to Comment C. of that section. found doctrine, to such a case literally, applicable is this, no here contractual relation because there but this case rather between the falls within parties, risk, doctrine of incurred which is from derived non maxim But under injuria.’ that 'Volenti fit anticipate neither doctrim was the required exposed to a that he would be hazard not naturally situation, to his but arising incidental negligence from reason wlúch had no O’Malley v. South foresee. Co., 135, 1119; Light Boston Gas 158 Mass. 32 N. E. 161; 4; L. R. 19 R. 47 A. A. Wood v. Heiges, 83 L. 872; 257, Delaware Maryland, Virginia & Md. 34 A. Brown, 304, 1005; 81 A. v. 109 Md. R. R. Co. L. S., A., supplied 1220.” for the last sen- (Emphasis N. 186-187, 12 A. Md. at 2d at 539. tence) . 178 State, Keenan, use to the County v. Baltimore also See 30, 359-361, A. 35-36 350, 2d (1963). Md. Windham, supra, v. Drug People’s In Stores an Windham, which had had collision with a Chevrolet seeing through a “smoke screen” across driving while other vehicle Pike, resulting pile Route the Rockville U. S. mo the vision of obscuring “smoke screen” hay, the burning automobile, it, returned through torists passing parked *12 to lift in the front of Chevrolet the collision stood scene of wheel, tractor- from the when the front fender the bent the “smoke through was driven People’s Drug trailer of Stores hour, struck the sixty to miles fifty per at between screen” Chevrolet, in the which turn struck Windham It held that the trial properly him. was court seriously injured defendant by instruction the that Wind- refused the requested of incurred risk. ham was barred the doctrine by in that is the case at bar persuasive In our Windham opinion does incurred risk not bar re- plaintiff’s doctrine of too, had reason to anticipate Here no covery. in the tractor-trailer in operating failing negligence Sasser into lane seeing the fast after the plaintiff’s to that vehicle drive
15 in lights tail and license sufficient plate pass time to safely the automobiles and one tractor-trailer had already done. See Brown, 304, D. Maryland Ry. 326, & Co. v. V. Md. Atl 71 1005, 1014 As was (1909). well stated in Motor 61 C.J.S. Vehicles, 71-72: §476b, pages
“A
person
or
engaged
assisting
repairing
movement of a
on
vehicle
is
to
required
exercise
that
of care
only
degree
which ordinarily
under
or
prudent persons would use
the same
similar
He
injury.
circumstances to avoid
is not bound to antic-
on the
ipate negligence
part
operators
ap-
vehicles, and,
in the
proaching
absence
circum-
which
stances
would afford notice to the contrary, he
to
extent
may rely
some
on the belief
that
opera-
tors of motor vehicles will exercise
care
ordinary
will
rules of
observe the
road
so as to avoid in-
juring him. Accordingly, he need not continuously
for approaching
watch
vehicles where the nature of the
work
ishe
engaged requires his attention.”
Martin,
306,
also Doss
See
v.
205 Va.
2d
854 (1964);
S. E.
Bolen,
478,
v.
Badurina
114 Ohio App.
183 N.
2d 241
E.
;
358,
(1961)
Uglow,
;
Holman v.
2d
Or.
3 P.
120 (1931)
Aldrich,
and Hanson v.
199 Iowa
“[H]is had gone hicles lane, that out by pulled into' the fast and went him and he assumed this that Defen- dant’s unit also would That go by. heavily is a traveled highway and if he is going out jump way everytime vehicle would come he would along never get fixed, think, his car and he had the right, I to as- lights sume having that there should him danger be any because the lighted vehicle was visible to of the traffic any on the highway, and he try had to to fix the condition which had caused him * * stop highway, *13 in this case was not barred from the plaintiff
In our opinion, risk. of incurred of the doctrine because recovery be the costs to Judgment affirmed, appellants. paid by the following dissenting opinion, filed McWilliams, J., con- Rains, specially assigned, J., Marbury, J., which curred. been bewitched by have majority of the
I brothers my think expres- Probably ancient cliche. use of an hyperbolic since the language in the English has been dark” “pitch sion Mabbe cites its use Dictionary The of Oxford Chaucer. days ab- connote seems to the virtual usage Subsequent in 1662. wrote, novels, Disraeli, in early one of his light. sence of all pitch from ever dark.” being (Emphasis “The stars it prevented stairs.” pitch-dark “these ascending spoke Dickens supplied.) they like say connotation when I think intend majority the full width investigate “was unable to the appellee was afraid pitch it dark and he [appellee] shoulder because was dark” It should be observed that “pitch into ditch.” walking his the car leaving justify is the used by appellee expression Although majority of the portion highway. the traveled facts a situa- his I think the disclose language have adopted of the expression “pitch tion should use preclude at the time degree existing dark” describe the visibility of the accident.
That was clear is states night undisputed. opinion that Werner of the Anne Arundel “upon [Corporal County his a clear Later night.” goes arrival it was the opinion Police] on to “he realized in a say that automobile was [appellee] but he also realized that it was a clear place danger, night.” official weather statistics in the According (not record overcast) but which I have examined) sky was clear (no rise, and the just moon was quarter about overhead. (Moon P.M.; set, moon 11:34 10:15 I A.M.) agree in the avail- light able would not one have been able to read a newspaper know, Ibut as must everyone, that there was deter- enough mine the width the shoulder. *14 sake, insufficiency the
However, argument’s assuming was, think, I light. quote artificial enough I light natural there from the opinion: minute for about one the shoulder
“He stood on then be sure that approach- northbound traffic to observing before see his automobile he ven- motorists could ing the to lower secure the highway out into tured automobiles or three northbound hood. He saw two his left of vehicle but he stopped pass safely had they approached in which lane it. not say could a northbound observed tractor-trailer ap- He then lane, saw it cut over to in the the left proach 100 yards better than to the rear of it was lane when it.” safely by pass his automobile and vehicles passing (assuming of those them headlamps to have must illuminated legally adequate) been the right have approached shoulder as To left) they appellee. see (and Furthermore, at all he had to do was look it. the shoulder it is that, time was during the entire he his undisputed stopped, lights and all (front rear) were engine running was that, circumstances, in these experience on. It is there my is to enable one to see light diffused shoulder. enough Judge dissent, Raine, has said who in this that joins his experience my own. supports been a it would have matter for
Finally, simple the appellee front wheels to the right turned his and to to have have moved This would have his car a few feet forward. directed the beam and, if shoulder of his to the could headlamps not then have the hood was blocking seen forward because his vision (which of his he could have out car doubt), stepped I and examined at that (which point at least the shoulder 8 feet wide). resumed his could have seat behind the Then he wheel and off of the hard surface. I if moved car doubt there is a per- to in who could Maryland son licensed drive not have accom- safely and within maneuver this seconds. plished Accord- car was ing opinion appellee's stopped the highway 3 minutes. for at least vehicle to have been
In holding appellee’s “disabled” so as exclusion of (b) Art. within come § 66J2 gone have far judgment, afield. I cannot be- my majority, that a means vehicle which statute be disabled may lieve is, along at 50 miles hour highway per proceeding here also present, disabled to the extent the circumstances it from impractical) move the hard sur- (or it is impossible shoulder, ablaze, with all especially lights engine face hood, order working everything except running down difficulty pushing had no but which would not appellee down, speeds, without being at fastened. stay trial, without a reversed new Judge have would I would *15 Raine, who concur in the views bury Judge expressed Mar herein. AND v. HOWE
MESSALL MERLANDS
CLUB, INC. 477, September Term, [No. 1965.]