Nicholas v. Galford

• Decision Date: 12 January 1962
• Docket Number: No. 133,133
• Parties: Elbert M. NICHOLAS, Admr. et al. v. Herbert A. GALFORD.
• Court: Maryland Court of Appeals

Page 347

227 Md. 347

176 A.2d 768

Elbert M. NICHOLAS, Admr. et al. v. Herbert A. GALFORD.

No. 133.

Court of Appeals of Maryland.

Decided Jan. 12, 1962.

E. Clinton Bamberger, Jr., and John C. Cooper, III, Baltimore (Vance V. Vaughan, Mt. Rainier, on the brief), for appellants.

William T. Pace, Mt. Rainier (McCullough & Pace and William H. McCullough, Mt. Rainier, on the brief), for appellee.

Before HAMMOND, PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.

HAMMOND, Judge.

This is the second instalment in the effort of Herbert Galford to recover for injuries he sustained in an automobile accident. The first sought a declaration that National Indemnity Company was an insurer of Hollis Nicholas, the driver of the car in which Galford was riding when injured. In Galford v. Nicholas, Adm., 224 Md. 275, 167 A.2d 783, we affirmed a summary judgment that the insurer was not liable to pay a judgment Galford might recover. Although Galford's declaration in that case alleged that if neither Nicholas' estate nor the insurance company paid any judgment Galford might recover, the Maryland Unsatisfied Claim and Judgment Fund Board would be liable, we held that since the Board was not a party it would not be bound by the declaration. (The case was defended by counsel representing the insurance company only.)

The present instalment of Galford's effort to recover damages involves a determination by summary judgment, entered by the trial court before the issue of liability for damages had been tried, that Galford was a resident of New York and, as such, one who could recover from the Unsatisfied Claim and Judgment Fund as a'qualified person' under Code (1957), Art. 66 1/2, Sec. 150(g) (Recovery may be had by a resident of Maryland or 'a resident of another state, territory or federal district of the United States or province of the Dominion of Canada, or foreign country, in which recourse is afforded to residents of this State, of substantially similar character to that provided for by this subtitle.').

The present appeal was in fact taken on behalf of the Unsatisfied Claim and Judgment Fund Board, although it was entered by trial counsel for the named appellant (the administrator of Hollis Nicholas), who was selected by the insurance company to which the Board assigned the case to investigate and defend (under the provisions of Code (1957), Art. 66 1/2, Sec. 155). It was briefed and argued by other counsel directly representing the Board.

The appellant makes three contentions: (a) the trial court lacked jurisdiction to decide Galford's motion for summary judgment; (b) assuming the court had jurisdiction, the issue of residence was not determinable by summary judgment; and (c) Galford was not a resident of New York. In the view we take of the case we need decide only the first point.

The Board argues that the trial court exceeded its jurisdiction in granting the summary judgment because, to quote its brief, 'the essential elements of jurisdiction are that the court has cognizance of the class of cases to which the adjudication belongs, that the proper parties are present, and that the point to be decided is in substance and effect within the issue,' and the residence of Galford was not an issue in the tort action.

It is clear that the court had statutory cognizance of cases in which payment by the Fund of a valid tort judgment is sought by a qualified person. Code (1957), Art. 66 1/2, Secs. 158-160; Simpler v. State for Use of Boyd, 223 Md. 456, 165 A.2d 464. In the declaration which Galford filed against Nicholas' administrator, he alleged in paragraph 9 that 'he has given proper and timely legal notice of the accident and of the plaintiff's intent to file a claim against he Unsatisfied Claim and Judgment Fund Board of the State of Maryland as required by law set forth in Art. 66 1/2, Section 154 of the 1957 Maryland Annotated Code.' Section 154(a) makes it a prerequisite to the filing of a claim for payment of a judgment that the applicant be a 'qualified person' as defined in the...