Burket v. Aldridge

• Decision Date: 15 February 1966
• Docket Number: No. 174,174
• Citation: 216 A.2d 910,241 Md. 423
• Parties: Chester BURKET v. David E. ALDRIDGE, Administrator of Estate of William Thomas Smith, Jr.
• Court: Maryland Court of Appeals

Page 423

241 Md. 423

216 A.2d 910

Chester BURKET v. David E. ALDRIDGE, Administrator of Estate of William Thomas Smith, Jr.

No. 174.

Court of Appeals of Maryland.

Feb. 15, 1966.

Samuel D. Hill, Baltimore (Buckmaster, White, Mindel & Clarke, Baltimore, and Richard E. Zimmerman, Frederick, on the brief), for appellant.

James McSherry, Frederick (McSherry & Burgee and Frederick J. Bower, Frederick, on the brief), for appellee.

Before PRESCOTT, C. J., and HORNEY, MARBURY, OPPENHEIMER and BARNES, JJ.

OPPENHEIMER, Judge.

On September 8, 1964, the appellant Charles Burket (Burket) filed a suit in the Circuit Court for Frederick County against William Thomas Smith, Jr. (Smith) alleging that Smith on September 11, 1961, through the negligent operation of an automobile, caused Burket serious personal injuries and property damage. The summons was returned 'mortuus est', Smith having died on December 29, 1963. Neither Burket nor his attorneys had known of Smith's death. On November 19, 1964, David E. Aldridge, the appellee, (the Administrator) was appointed Administrator of Smith's estate by the Orphans' Court for Frederick County at the instance of Burket's attorneys. On December 28, 1964, the Administrator suggested Smith's death to the court and asked leave, which was granted, to be substituted as defendant. The Administrator pleaded limitations and that Smith did not commit the wrongs alleged, and moved for summary judgment on the ground of the Statute of Limitations. Judge Clapp found that the facts were not in dispute on the question and granted the motion. Burket appealed.

The question presented is whether Burket's action is barred by the three year period of limitations, Code (1964 Repl.Vol.) Article 57, Section 1, because his suit against Smith, while filed a few days before the expiration of the three year period from the date of the accident, was filed after Smith's death or whether the action survives, under Code (1964 Repl.Vol.) Article 93, Section 112, because it was brought within six months after the appointment of the Administrator.

The pertinent provisions of Section 112 are as follows:

'Executors and administrators * * *; and they shall be liable to be sued in any court of law * * *, in any action (except slander) which might have been maintained against the deceased; * * *; provided, however, that any such 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.'

Burket contends that where the tort-feasor dies within the three year period before suit has been filed against him, the cause of action against the tort-feasor also dies and the three year limitation period is no longer applicable, but a new cause of action against the personal representative is created under Section 112 with the limitation period of six months after qualification of the personal representative. The Administrator contends that the six months period allowed for the filing of suit by Section 112, from the qualification of the executor or administrator of the tort-feasor's estate, does not extend or toll the three year period of limitations. Judge Clapp, in an able opinion held the suit was barred. We agree.

The Language of Section 112 is unambiguous. Executors and administrators shall be liable to be sued in any action (except slander) 'which might have been maintained against the deceased.' Under Article 57, Section 1, no action can be maintained against a deceased after three years from the date of the wrong. The action against the personal representative of the deceased tort-feasor must be brought within six months from the date of his appointment, but Section 112 does not provide that the original three year period of limitation is tolled by the death of the tort-feasor, and there is nothing in the Section to indicate that, if action has not been brought against the tort-feasor during his lifetime, it can be brought against his executor or administrator after the three year period has expired, even if it is brought within six months of the appointment of the deceased's personal representative. The Section is to be read in the light of the right given by Maryland law for the appointment of an administrator by a person having a claim against the estate, if there are no relations or if those first entitled to letters fail to apply. Code (1964 Repl.Vol.) Article 93, Section 34. Barton v. Tabler, 183 Md. 227, 231, 37 A.2d 266 (1944) and cases therein cited. In the present case, Burket availed himself of this privilege.

Until 1929, actions for personal injuries abated on the death of the tort-feasor. In 1929, the legislature provided that, where the tort-feasor died before suit, an action could be brought against his personal representatives within six months of the tort-feasor's death. In 1949, the six months period of limitation on actions against the personal representative was changed to begin on the representative's qualification instead of on the death of the tort-feasor. In 1953, in making certain amendments not here applicable, the legislature stated in the preamble to the amendatory act that the 1949 law had amended the Section in order to extend the time in which certain suits may be brought against an executor or administrator where there is a delay in the appointment or qualification of the executor or administrator. Laws of Maryland 1953, Ch. 689. As this Court observed in Chandlee v. Schockley, 219 Md. 493, 497, 150 A.2d 438, 440 (1959), '[t]he legislative history of Lord Campbell's Act and Sec. 112 tends to show that the legislative purpose was that the two statutes should have similar meanings and effects. See Ch. 570, Acts of 1929 and Ch. 468, Acts of 1949.'

The purpose of this legislation was obviously to correct the injustices occurring under the common law where a tort-feasor had died before the person he had injured had had reasonable opportunity to file his cause of action. Indeed, in the absence of a statutory provision similar to Section 112, some courts have postponed the running of the statute for a reasonable time until the appointment of an executor or an administrator. See Bauserman v. Blunt, 147 U.S. 647, 13 S.Ct. 466, 37 L.Ed. 316 (1893) and the State decisions therein discussed. See also, Developments in the Law--Statutes of Limitations, 63 Harv.L.Rev. 1177, 1228-29 (1950).

The equitable reasons for the enactment of Section 112, however, do not go to the tolling of the original statute of limitations by reason of the tort-feasor's death. Neither the Section itself as it now stands nor its predecessors contained any such provision. The absence of such a provision takes on added significance in the light of the purposes of Statutes of Limitations.

Those purposes were well expressed in Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-349, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944). Mr. Justice Jackson, in delivering the opinion of the Court, said:

'Statutes of limitation, like the equitable doctrine of laches, in their conclusive effects are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.'

In Bertonazzi v. Hillman, Md., 216 A.2d 723 (filed Feb. 14, 1966), Judge Hammond, for the Court, said as to the six months period of limitation under Section 112:

...