Grubbs v. Prince George's County, 70

• Decision Date: 11 December 1972
• Docket Number: No. 70,70
• Parties: Woodrow W. GRUBBS v. PRINCE GEORGE'S COUNTY, Maryland.
• Court: Maryland Court of Appeals

Page 318

267 Md. 318

297 A.2d 754

Woodrow W. GRUBBS v. PRINCE GEORGE'S COUNTY, Maryland.

No. 70.

Court of Appeals of Maryland.

Dec. 11, 1972.

Donald P. McLaughlin, Hyattsville, for appellant.

Lansdale G. Sasscer, Jr., Upper Marlboro (Sasscer, Clagett, Channing & Bucher, Upper Marlboro, on brief), for appellee.

Argued before BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ., and ALFRED L. SCANLAN, Special Judge.

LEVINE, Judge.

This appeal is from an order of the Circuit Court for Prince George's County (McCullough, J.) sustaining, without leave to amend, a demurrer to appellant's (plaintiff below) declaration which sought damages for personal injury from Prince George's County, appellee. The sole basis assigned for the ruling was appellant's failure to comply with Code (1957, 1972 Repl. Vol.) Art. 57, § 18, which provides for notice to municipal corporations and certain counties of Maryland in unliquidated claims for personal injury or property damage.

The statute, as applicable here, provided in relevant part:

'(a) (1) No action shall be maintained and no claim shall be allowed against any municipal corporation or against any of the counties enumerated in this subsection for unliquidated damages for any injury . . . to person . . . unless within the times specified in this section after the injury or damage was sustained, written notice setting forth the time, place or cause of the alleged . . . injury . . . shal be presented either in person or by registered mail by the claimant . . . to the county commissioners (or) county council . . .. In Montgomery County and Howard County, written notice shall be presented to the county executive. (emphasis added)

'(b) In . . . Prince George's, . . . the time within which the claim must be presented is one hundred and eighty (180) days. * * *'

The incident relied upon for appellant's cause of action is alleged to have occurred on February 27, 1971. On August 26, 1971, the one-hundred-eightieth day thereafter, appellant's attorney sent by registered mail to William W. Gullett, County Executive for Prince George's County, a letter in which he furnished the information required by § 18. The letter was received on August 27th, the one-hundred-eighty-first day following the injury.

The singular contention made by appellee in support of its demurrer was that § 18 required the notice to be received within one hundred eighty days, and that a mere mailing within that time did not meet the statutory requirement. Judge McCullough agreed, saying:

'. . . (T)he statute, being a statute of limitations, is strictly construed . . .. The statute says that the written notice shall be presented either in person or by registered mail within 180 days. The Court reads that statute to mean that the notice must be presented either in person or presented by registered mail within 180 days. The Court reads that to mean in hand within 180 days.

'The Court finds that the mailing of the notice on the 180th day by registered mail, it having been received on the 181st day, is not complicance with the statute, the statute having to be strictly construed, and accordingly the defendant's demurrer is granted without leave to amend.'

In this Court, appellee widens its stance to include the argument that the notice in question was mailed to the county executive, rather than the county council as prescribed by the code. Since this point was neither raised by appellee in support of its demurrer, as required by Rule 345 b, nor decided in the circuit court, we do not consider it here. Rule 885.

As we have noted, having regarded § 18 as a statute of limitations, the court below placed considerable emphasis upon the need for strict construction. We observe here, mainly for perspective, that we have never held § 18 to be a statute of limitations. Rather, we have regarded it as a condition precedent to the right to maintain an action for damages. See Cotham and Maldonado v. Board, 260 Md. 556, 563, 273 A.2d 115 (1971) and Neuenschwander v. Wash. San. Comm., 187 Md. 67, 78, 48 A.2d 593 (1946). Nor have we said that it must be strictly construed. Our decisions suggest a somewhat different view of § 18. Loewinger v. Prince George's County, 266 Md. 316, 292 A.2d 67 (1972); Jackson v. Bd. of Co. Comm'rs, 233 Md. 164, 195 A.2d 693 (1963). In Jackson, notice was given Verbally by the claimant's attorney to an assistant county attorney and by ordinary mail to the county commissioners, both being received within the ninety days then applicable to Anne Arundel County under § 18. In an opinion by Judge Hammond, this Court reversed a decision granting summary judgment for noncompliance with § 18. We said:

'The purpose of the statute clearly would seem to be to have the claimant furnish the municipal body with sufficient information to permit it to make an investigation in due time, sufficient to ascertain the character and extent of the injury and its responsibility in connection with it . . .. Under the great weight of authority, substantial compliance is enough . . ..

'It is conceded that the appellant did not either deliver the notice in person or cause it to be delivered by registered mail, but it is also a stipulated fact that the notice, which we hold met the statutory standards, was actually received by the County in the ordinary mail within the time set by the Code provision. Statutes of this type are part of the law of many States and the majority of the cases recognize that the purpose of their specifics as to delivery is to make sure that notice actually is received within a short enough time after the injury occurs to give the municipality an opportunity to investigate while the matter is fresh. If the purpose of the statute is fulfilled, the manner of the accomplishment of the fulfillment has not generally been tested too technically. (Citation omitted) In such cases substantial compliance generally is held to be enough. 18 McQuillin, Mun.Corp., 3rd Ed., Sec. 53.162 (Cum.Supp.); 1 Merrill on Notice, Sec. 545, p. 570; 64 C.J.S. Municipal Corporations § 2199, a. and f.; 38 Am.Jur.Mun.Corp. Sec. 675; Rhyne, Municipal Law, Sec. 30-32.' 233 Md. at 167-168, 195 A.2d at 695 (emphasis added).

There are two thrusts to appellee's argument for affirmance. First, it puts great reliance on Rapid Motor Lines v. Cox, 134 Conn. 235, 56 A.2d 519 (1947) and O'Neil v. Boston, 257 Mass. 414, 153 N.E. 884 (1926). While those cases are factually similar to the one at bar, they are inapposite for our purposes, as in both the comparable statute was, in its operative language, distinguishable from § 18. In Rapid Motor Lines, the statute read: "No such action shall be brought * * * unless notice' of the nature, cause, place and time of the injury 'shall have been given within sixty days . . .." Notice of the claim was mailed on the sixtieth day but arrived on the sixty-first. In these circumstances, the court interpreted the statute to require that notice 'be delivered . . . within the sixty-day period specified in the statute, and that sending on the sixtieth day a notice which is not received . . . until the sixty-first day does not constitute compliance with the statute.' 56 A.2d at 521.

Similarly, in O'Neil, the statute, without prescribing the mode by which notice should be given, merely provided that a claimant 'shall within ten days' after sustaining injury give notice. It is the very absence of the language contained in the Maryland statute, allowing for the registered mailing of notice, which we regard as the critical distinction between the case at bar and those cited above. Nor does any other case cited by appellee present us with a supportive holding in which the ...