Chandlee v. Shockley

• Decision Date: 15 April 1959
• Docket Number: No. 163,163
• Citation: 150 A.2d 438,219 Md. 493
• Parties: Clara R. CHANDLEE v. Lola Dryden SHOCKLEY, Administratrix of Estate of Homer W. Shockley, deceased.
• Court: Maryland Court of Appeals

Page 493

219 Md. 493

150 A.2d 438

Clara R. CHANDLEE v. Lola Dryden SHOCKLEY, Administratrix of Estate of Homer W Shockley, deceased.

No. 163.

Court of Appeals of Maryland.

April 15, 1959.

W. Frank Every and Wm. Bruce Oswald, Baltimore (Thomas F. Johnson, Snow Hill, on the brief), for appellant.

William H. Price, Snow Hill, and William W. Travers, Salisbury (John L. Sanford, Jr., Berlin, on the brief), for appellee.

Before HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ., and THOMAS J. KEATING, Jr., Special Judge.

HAMMOND, Judge.

On June 25, 1957, Clara R. Chandlee, the appellant, filed a declaration against the administratrix of the estate of Homer W. Shockley, deceased, the appellee, to recover damages for personal injuries sustained in a collision between her automobile and an automobile negligently operated by Shockley, who was killed in the accident, on October 8, 1956. After a demurrer had been sustained, the appellant filed an amended declaration which made the added allegations that the appellee qualified as administratrix on October 18, 1956 and that following such qualification 'duly authorized representatives and agents of the * * * Administratrix' had 'requested and induced' the appellant not to file suit and assured her 'that said claim would be settled and * * * damages paid by * * * deceased's estate without the necessity of filing suit.' These statements were alleged to have lulled appellant 'into a false sense of security in the belief that the said Administratrix had waived the benefit of six (6) months limitation period in cases of this type' and 'by reason of said statements, representations and inducements, the * * * Administratrix * * * is now estopped from relying on the six (6) months limitation period.'

Particulars filed in response to demand set forth various verbal communications between the appellant's attorneys and persons alleged to have been acting in behalf of the administratrix over a period from October 15, 1956, to May 15, 1957, particularly a Mr. Petrick, who, when told by appellant's counsel that he wanted to be sure, if settlement failed, that Petrick would not 'knock me out of Court by pleading limitations', replied: 'There is no reason for you to say that * * *. I think this is the type of a claim which can and should be settled out of court * * *. We will not take any more advantage of you than I know you will take of us. My company does not work that way.' Mr. Petrick also said on a later occasion that nothing would be gained by filing suit, that more time was necessary to learn the extent of the damages, and that he would not take advantage of a delay. 'My company does not make a practice of taking advantage of legal technicalities in order to keep from paying legitimate claims. Insofar as I know, we are not arguing here over liability. We are discussing damages and you can take my word for it that there is no reason for you to file suit. I repeat, don't file suit, because there is no reason for it.' The appellant was hospitalized on several occasions and not finally released until after the six-month period had expired. Between May 15 and June 21, repeated efforts to reach Mr. Petrick failed, and suit was then filed.

The appellee demurred to the amended declaration, as particularized, on the grounds that the declaration showed on its face that suit was not commenced within six calendar months after the qualification of the administratrix, under Code 1957, Art. 93, Sec. 112, and that the right of action was lost and barred; that the defendant could not be estopped from setting up the defense; that the condition prescribed by the Statute could not be waived by a personal representative; and finally that the facts set forth in the bill of particulars were insufficient to constitute a waiver or estoppel. The trial court sustained the demurrer and directed the clerk to enter judgment for the defendant, administratrix, for costs. The appeal is from that judgment.

The appellant's first contention is that the defense of limitations cannot be raised by demurrer. Many courts recognize that where the period of limitations is set forth in the statute and is considered a part of the grant of the right itself, the lateness of the suit may be invoked by demurrer. See Clark, Code Pleading (2d ed.), p. 522. In State for Use of Stasciewicz v. Parks, 148 Md. 477, 482, 129 A. 793, 795, it was held that the provision of Article 67 of the Code (now Code, 1957, Art. 67, Sec. 4), requiring suits for wrongful death to be brought within the prescribed statutory period after the death of the deceased person was a 'condition precedent to the right to maintain the action, and that a declaration which discloses on its face that the suit was not brought within 12 months is bad on demurrer.' In State to Use of Dunnigan v. Cobourn, 171 Md. 23, 187 A. 881, 107 A.L.R. 1045, it was held that a demurrer was properly sustained to a declaration which failed to allege that an action under Article 67 (Code, 1957, Art. 67, Sec. 1) against the administrator of a deceased tortfeasor was filed within the statutory period. The annotation following this case in 107 A.L.R. 1048 indicates that it is in line with the great weight of authority. In Board of Education of Cecil County, for Use of International Business Machines Corporation v. Lange, 182 Md. 132, 135, 32 A.2d 693, there was a similar ruling in regard to a statutory bond.

The appellant contends, however, that these cases are distinguishable on the ground that Code, 1957, Art. 93, Sec. 112, is a 'survival state' rather than a statute creating a new cause of action. The section provides that an executor or administrator may be sued '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.' Maryland Rule 205 a 2 did not replace the Statute, which has not been repealed, but is merely declaratory of the procedural aspects. The argument seems to be that under this Statute the cause of action remains one against the tortfeasor, with the personal representative merely substituted for his decedent. Compare Maryland Rule 220 a, which provides that an action for personal injuries, once instituted, does not abate by reason of the death of one of the parties. But under Section 112, the representative does not merely take the place of one against whom a claim has been asserted, but is made amenable, in his representative capacity, to service of process as an original party. Such direct liability did not exist at common law but is conferred wholly by the Statute. Compare Demczuk v. Jenifer, 138 Md. 488, 490, 114 A. 471, and White v. Safe Deposit & Trust Co., 140 Md. 593, 596, 118 A. 77, 24 A.L.R. 482. The 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. There is also an analogy to cases brought against an executor or administrator under Code, 1957, Art. 93, Secs. 119, 120. 'It has been repeatedly held by this Court that [these sections] * * * create a statutory bar as distinguished from a mere period of limitations which may be waived. It extinguishes the right to sue, not merely the remedy.' Nowell v. Larrimore, 205 Md. 613, 624, 109 A.2d 747, 752; Donnally v. Montgomery County Welfare Board, 200 Md. 534, 540, 92 A.2d 354, 34 A.L.R.2d 996. See also Neuenschwander v. Wash. Suburban Sanitary Commission, 187 Md. 67, 76, 48 A.2d 593, holding that an act requiring notice of a claim for personal injuries was a condition precedent, and that failure to give the notice could be raised on demurrer. We hold that the question in the instant case properly was raised on demurrer.

Appellant further contends that despite her failure to bring the action within the time prescribed by statute, she is not barred because the administratrix waived or induced the delay and is estopped to rely on it. Assuming for the time being that the allegations as to waiver and estoppel are enough to sustain the proposition, if it is otherwise tenable, we must decide whether there can be waiver or estoppel as to a statute in which the time proviso is part of the right and not merely a limitation of the remedy. In an ordinary statute of limitation, the remedy may be waived. On the other hand, most courts have held that if the statute creates a new cause of action with a time limit as a condition precedent, such limit can not be extended by waiver or estoppel. The cases are collected in the notes and annotations in 77 A.L.R. 1044, 1050; 130 A.L.R. 8, 15; 15 A.L.R.2d 500; 24 A.L.R.2d 1413, 1418. Some states do not recognize the distinction between the two types of statute--see note in 67 A.L.R. 1070, 1074--and some writers think the distinction is unsound. See 63 Harv.L.Rev. 1177, 1186, 1234.

Even where the distinction is recognized and the statute involved is substantive and creates the right rather than limits the remedy, the rule that the controlling period of time may not be tolled has never been held to be immutable under all circumstances. Where war prevents access to the courts the substantive as well as the remedial statute of limitations is tolled. Osbourne v. United States, 2 Cir., 164 F.2d 767; Frabutt v. New York, C. & St. L. R. Co., D.C.W.D.Pa., 84 F.Supp. 460; Borovitz v. American Hard Rubber Co., D.C.N.D.Ohio, 287 F. 368; Peters v. McKay, Or., 238 P.2d 225, 239; In Re Caravas' Estate, 40 Cal.2d 33, 250 P.2d 593, 597; Siplyak v. Davis, 276 Pa. 49, 119 A. 745.

In 1949 the United States Court of Appeals for the Fourth Circuit decided the case of Scarborough v. Atlantic Coast Line R. Co., 178 F.2d 253, 15...