Blocher v. Harlow

• Citation: 268 Md. 571,303 A.2d 395
• Decision Date: 11 April 1973
• Docket Number: No. 232,232
• Parties: Joseph P. BLOCHER, Administrator of the Estate of Judith Ann Schrott, v. Milton HARLOW et al.
• Court: Maryland Court of Appeals

Page 571

268 Md. 571

303 A.2d 395

Joseph P. BLOCHER, Administrator of the Estate of Judith Ann Schrott, v. Milton HARLOW et al.

No. 232.

Court of Appeals of Maryland.

April 11, 1973.

Edward B. Layne, Jr., Rockville (James A. Sullivan and McInerney, Layne & McCormick, Rockville, on the brief), for appellants.

Joseph J. D'Erasmo, Rockville (Vivian V. Simpson, Joseph B. Simpson, Jr., H. Algire McFaul and Simpson & Simpson, Rockville, on the brief for appellee Milton Harlow and others.

Edward C. Bell and Bell & Reilly, Hyattsville, on the brief for appellee Cecil Thomas King and others).

Argued before BARNES, McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.

SMITH, Judge.

An earlier bout in this affair, which has been going on since 1969, reached this Court under the name of Harlow v. Blocher, 257 Md. 1, 262 A.2d 58 (1970). There Chief Judge Hammond observed for the Court that 'the suit below (might) have been instituted too late but the appeal certainly was taken too soon.' The appeal in this case was also taken too soon. Because we conclude that the trial judge (Levine, J., now a member of this Court) was correct and the Court of Special Appeals in error on the issue of whether the suit below was instituted too late, we shall express our views under the authority of Maryland Rule 885, being of the opinion that 'a decision of such point or question of law by this Court is necessary or desirable for the guidance of the lower court . . . to avoid the expense and delay of another appeal . . ..'

The case grows out of a two car collision which took place in Montgomery County on April 15, 1966. The vehicles were operated by Judith Ann Schrott, of whose estate the appellant, Joseph P. Blocher (Blocher), is the administrator, and Ruth Ann King. Miss Schrott died the same day as a result of the accident. Blocher qualified as administrator or executor of the Schrott estate on September 9, 1966. On February 14, 1969, suit was filed by Linda Harlow, a passenger in the Schrott vehicle, and her parents against Richard James Schrott (the owner of the vehicle operated by Judith Ann Schrott) 'individually' and as 'father and next friend of Judith Ann Schrott, deceased minor'; Cecil Thomas King (the owner of the King vehicle); and Ruth Ann King. Miss Harlow's counsel then are not her counsel now. As a result of a motion raising preliminary objection filed on behalf of Richard James Schrott 'father and next friend of Judith Ann Schrott' contending that he was not a proper party to the proceeding, an amended declaration was filed on May 5, 1969, more than three years after the occurrence of the accident. This for the first time made Blocher as administrator of Miss Schrott's estate a party defendant. Richard James Schrott, Cecil Thomas King, and Ruth Ann King were also named as parties defendant.

Being conscious of the mandate of Rule 342 d 2 that a plea of limitations must be filed within the time required by Rule 307, on May 20 Blocher filed in addition to his general issue plea a plea that said:

'1. That this action was not commenced within six months from the date the defendant, Joseph P. Blocher, duly qualified as the administrator of the Estate of Judith Ann Schrott, deceased minor, as required by Article 93, Section 112 of the Annotated Code of Maryland, which was in effect on April 15, 1966, the date upon which the wrongs complained of in said Declaration are based. (See Attached Exhibit #1)'

The exhibit to which he referred was a certificate from the Register of Wills for Montgomery County to the effect that 'Letters Testamentary' on September 9, 1966, had been 'granted and committed unto Joseph P. Blocher the Executor by the last Will and Testament of the said deceased appointed . . ..' ¹ Of course, under the holding in Chandlee v. Shockley, 219 Md. 493, 496-497, 150 A.2d 438 (1959), that the time limitation prescribed by § 112 was a condition precedent to the right to maintain the suit and not merely a limitation upon it and that, therefore, failure to file suit within the time limited could be raised by demurrer, the issue here could have been thus tested if apparent on its face. See also Smith v. Westinghouse Electric, 266 Md. 52, 58, 291 A.2d 452 (1972).

It will be noted that this plea of limitations makes no reference to the limitations imposed by Code (1957) Art. 57, § 1 requiring actions such as this for personal injuries to 'be commenced, sued or issued within three years from the time the cause of action accrued . . ..'

On the date of the accident, Code (1957) Art. 93, § 112 required that any 'action for injuries to the person to be maintainable against an executor or administrator must be commenced within six calendar months after the date of the qualification of the executor or administrator of the testator or intestate.' By Chapter 642 of the Acts of 1966, effective June 1, 1966, the General Assembly added to § 112 a provision permitting such an action 'against the estate of a testator or intestate (to) be instituted after the expiration of six months but within the statute of limitation in the event the deceased was covered by an existing insurance policy at the time of the occurrence, the existence of such insurance coverage not being admissible at the trial of the case and the recovery in the event of a judgment against the estate to be limited to the extent of such existing insurance.' ²

Blocher moved on June 4, 1969, for summary judgment based upon his plea of limitations. The Harlows countered, contending that the 1966 change in § 112 was applicable and also making some reference to having been 'lulled . . . into a false sense of security in the belief that suit was not essential to recover damages in this matter, and that no attempt would be made by the defendants, through their claims agents, to defeat a legitimate claim of a blameless plaintiff by a plea of limitations or otherwise . . ..' At the hearing on June 27 Judge Levine announced his intention of granting a partial summary judgment upon the strength of § 112 as it existed prior to the 1966 amendment, citing Dixon v. Checchia, 249 Md. 20, 238 A.2d 247 (1968), to which we shall later allude. In the order on July 7, in accordance with Judge Levine's announcement on June 27, it was provided that pursuant to Rule 501a prior to any trial on the merits there should be a hearing or trial for the purpose of determining the issue of whether there had been an estoppel and/or waiver of the time limitation contained in § 112. It does not appear that anyone had any thought of asking Judge Levine to assume the role of 'dispatcher' mentioned by Mr. Justice Burton in Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435-436, 76 S.Ct 895, 100 L.Ed. 1297 (1956), cited by us in Lang v. Catterton, 267 Md. 268, 276-277, 297 A.2d 735, 740 (1972), by making a determination under Rule 605 a as to whether the case was one ripe for review by us. Had he concluded that it was, then he would have made 'an express determination that there (was) no just reason for delay' and a final judgment might have been entered by his 'express direction for the entry of judgment.' Accordingly, the appeal from his order reached us in Harlow v. Blocher, 257 Md. 1, 262 A.2d 58, and was dismissed.

The issue of waiver or estoppel came on for trial before a Montgomery County jury on October 18, 1971. At the close of the plaintiff-appellees' case Blocher moved for a directed verdict in his favor which was granted. The issues against the Kings remained to be tried. One might suppose that having been once exposed to Rule 605 a through the dismissal of the appeal in Harlow v. Blocher, 257 Md. 1, 262 A.2d 58, that this time the thought might have occurred to counsel for the parties that it might be wise to make inquiry of the trial judge as to whether in his role of 'dispatcher' he regarded the matter as ripe for review on appeal, but such was not the case. An appeal to the Court of Special Appeals was entered by the plaintiffs, Milton Harlow, Marion Harlow, and Linda C. Harlow, and by the defendants, Cecil Thomas King and Ruth Ann King, notwithstanding the fact that the issues against the Kings remained to be tried. ³ It thus would appear that counsel did not take seriously our chiding of the bar for its disregard of the rules and our advice to the bar that the rules are not guides to the practice of law, but precise rubrics established to promote the orderly and efficient administration of justice which are to be read and followed, Robinson v. Bd. of County Comm'rs, 262 Md. 342, 346, 278 A.2d 71 (1971); Isen v. Phoenix Assurance Co., 259 Md. 564, 570, 270 A.2d 476 (1970); Lewis v. Germantown Insurance Company, 251 Md. 535, 536-537, 248 A.2d 468 (1968); and Brown v. Fraley, 222 Md. 480, 483, 161 A.2d 128 (1960).

In the Court of Special Appeals the Harlows contended once more that Judge Levine had erred in his conclusion that Art. 93, § 112 as it existed prior to June 1, 1966, was applicable to this case, and that he erred in failing to submit to the jury the question of whether the administrator through his agents had waived or was estopped from asserting limitations.

In Harlow v. Schrott, 16 Md.App. 31, 294 A.2d 349 (1972), the Court of Special Appeals held that Judge Levine erred in his ruling relative to § 112. Accordingly, it did not reach the question of waiver or estoppel. It took cognizance of the violation of Rule 605 a, but proceeded to decide the matter stating that 'at oral argument of the case, all parties urged that (the court) consider the limitations question on its merits, rather than to dismiss the appeal as premature.' Accordingly, it vacated the order granting the motion for summary judgment and remanded the case for further proceedings in accordance with its opinion. Blocher applied to us for the writ of certiorari which we granted.

Under Rule 605 a, as we have previously indicated citing Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed....