Smith v. Gray Concrete Pipe Co., Inc.

• Decision Date: 04 December 1972
• Docket Number: No. 1,1
• Citation: 297 A.2d 721,267 Md. 149
• Parties: A. B. SMITH, Jr., Adm'r et al. v. GRAY CONCRETE PIPE COMPANY, INC. et al. Misc.
• Court: Maryland Court of Appeals

Page 149

267 Md. 149

297 A.2d 721

A. B. SMITH, Jr., Adm'r et al. v. GRAY CONCRETE PIPE COMPANY, INC. et al.

Misc. No. 1.

Court of Appeals of Maryland.

Dec. 4, 1972.

George W. Shadoan, Rockville (Shadoan & Mack, Rockville, on the brief), for plaintiffs.

Kevin J. McCarthy, Upper Marlboro (Sasscer, Clagett, Channing & Bucher, Upper Marlboro, on the brief), for defendants.

Argued before MURPHY, C. J., and BARNES, SINGLEY, SMITH and LEVINE, JJ.

LEVINE, Judge.

We are presented here with the first case to reach this Court pursuant to the 'Uniform Certification of Questions of Law Act,' enacted by the General Assembly as Ch. 427, Laws of Maryland, 1972, since codified as Code (1957, 1960 Repl. Vol., 1972 Supp.) Art. 26 §§ 161-172. Section 161 provides:

'The (C)ourt of Appeals may answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, or a United States District Court when requested by the certifying court if there is involved in any proceeding before it a question of law of this State which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Court of Appeals of this State.'

The question upon which our opinion is sought here comes to us from the United States District Court for the Eastern District of Virginia with a record consisting of a complaint for damages arising out of a motor vehicle collision occurring in Maryland, and a motion to dismiss the complaint.

In brief, the complaint alleges that an accident occurred on July 19, 1970, in Prince George's County, in which Adolphus Gilliam Bradshaw, III, a minor, was killed. The complaint contains four causes of action: Count one is a claim for compensatory damages by the decedent's parents based on wrongful death. Code (1957, 1970 Repl.Vol.) Art. 67 § 1. The legal theory on which count one rests is negligent entrustment against the corporate defendant which was the owner of the truck involved in the collision with the decedent.

Count two, which likewise seeks compensatory damages for wrongful death due to negligent operation, is directed at both defendants, the corporate owner of the truck and the operator, and, as against the former, is based upon respondent superior.

Count three is a survival action, Code (1957, 1969 Repl.Vol.) Art. 75 §§ 15 A, 15B, and Art. 93 § 7-401(n), brought by the administrator of the decedent's estate against the corporate defendant for negligent entrustment, but, in addition to compensatory damages, seeks punitive or exemplary damages.

Count four, also a survival action brought by the administrator, seeks compensatory and exemplary damages, but, in alleging negligent operation and respondeat superior, is patterned on count two. As will later be seen, we are concerned here with counts three and four which incorporate by reference the substantive tort allegations of counts one and two, respectively.

Defendants responded to the complaint by filing a motion to dismiss counts three and four 'since punitive damages are not allowed by law in cases involving automobile accidents such as this and because this point has previously been decided by the Circuit Court for Prince George's County, Maryland from which decision no appeal was taken.' Although the motion is silent in this regard, we shall treat it as one filed pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, for 'failure to state a claim upon which relief can be granted.' It is the motion to dismiss that led directly to the order of certification. ¹

We are confronted with three threshold questions which defendants contend must be resolved favorably to plaintiff before we may reach the question which has been certified to us.

Those questions are:

(1) Does this Court have jurisdiction to hear an action involving injury resulting from the operation of a motor vehicle or motor vehicles which has not been first presented to the Court of Special Appeals?

(2) Is the decision of the Circuit Court for Prince George's County that punitive damages may not be allowed, binding on any other court in which this case might be filed?

(3) Can an administrator recover punitive damages because of an automobile accident?

I

In contending that this Court has no jurisdiction to hear a case involving an injury arising from the operation of a motor vehicle which has not been presented to the Court of Special Appeals, defendants rely exclusively upon Code (1957, 1968 Repl.Vol) Art. 5 § 5A(16) and § 21. Those provisions govern the categories over which the Court of Special Appeals has initial appellate jurisdiction, and the granting of certiorari by both appellate courts. ²

In effect, defendants argue that since this is a tort action, we may not consider the case, our jurisdiction in this sector being limited to those cases in which we have granted certiorari. We disagree.

First, with due respect for the Court of Special Appeals, it is clear from the language of Art. 26 § 161 that the Uniform Act which has brought this case here contemplates a decision by the highest tribunal of a state in which there is lacking the controlling precedent sought by the certifying court. This view is not attenuated by the fact that this Court has jurisdiction over (motor) tort cases by certiorari only. What defendants overlook in this regard is that the jurisdiction conferred by Art. 26 § 161 is extrinsic to the framework of our traditional appellate function set forth in Art. 5 of the Code.

Secondly, in enacting § 161 et seq., the Legislature is presumed to have been cognizant of the jurisdiction of this Court, as delineated in Art. 5 § 5A(16). Since the two statutory provisions are neither irreconcilable nor mutually repugnant, they should be construed in harmony with their respective objects and tenor, Public Service Commission v. Maryland Bay Co., 176 Md. 59, 3 A.2d 736 (1939); Blades v. Szatai, 151 Md. 644, 135 A. 841 (1927). This rule is especially applicable, where, as here, we deal with two statutes relating to the same subject matter, Prince George's Co. v. McBride, 263 Md. 235, 282 A.2d 486 (1971); May v. Warnick, 227 Md. 77, 175 A.2d 413 (1961); Balto. Credit Union v. Thorne, 214 Md. 200, 134 A.2d 84 (1957); Welsh v. Kuntz, 196 Md. 86, 75 A.2d 343 (1950), viz., the jurisdiction of this Court.

In short, we see the Legislature as having fully intended that this Court should determine all open questions certified under Art. 26 § 161 without regard to whether such questions pertain to substantive matters in which we no longer happen to retain initial appellate jurisdiction.

II

Prior to bringing this action in the federal court, plaintiffs had filed the same cause of action in the Circuit Court for Montgomery County, Maryland, from which it was removed by agreement, after a dispute over venue, to the Circuit Court for Prince George's County. There it came on for hearing before Judge Ralph W. Powers on defendants' demurrer which, as with the motion to dismiss which attacks the complaint here, challenged in part the sufficiency of plaintiffs' amended declaration. The demurrer to those counts which prayed exemplary damages was sustained without leave to amend, Judge Powers having, in effect, ruled that such damages could not be recovered in the absence of an intentional tort and that plaintiffs had not alleged facts showing conduct "of such an extraordinary character as possibly to be the legal equivalent of intentional or actual malice," citing Conklin v. Schillinger, infra.

Defendants argue here that Judge Powers' decision regarding exemplary damages is binding upon plaintiffs who, they say, waived further consideration of the same question by the courts of this state when they failed to preserve the point for ultimate determination through the appellate route. Although they do not eo nomine assert res judicata, this is evidently the issue they seek to raise.

We entertain considerable doubt that this question is properly before us since, as plaintiffs observe, the circuit court proceedings are neither a part of the record forwarded to this Court by the federal court; nor is this issue within the ambit of the certification, our role being confined to the determination of questions upon which 'there is no controlling precedent in the decisions' of this Court. In any event, we shall assume arguendo for purposes of this opinion that the issue is one which we must reach here. In so doing, however, we intimate no approval of the inclusion of matters in the record extract and brief which are not contained in the record itself.

What defendants overlook in contending that plaintiffs are barred due to Judge Powers' decision, is that after the demurrer was sustained, but before the entry of a final judgment, plaintiffs took a voluntary nonsuit in the circuit court. It is fundamental to the application of the doctrine of res judicata that there must previously have been a final adjudication. Badders v. Uhler, 233 Md. 441, 197 A.2d 120, cert. denied 377 U.S. 958, 84 S.Ct. 1639, 12 L.Ed.2d 502 (1964); Queen City v. Independent, 230 Md. 387, 187 A.2d 459 (1963); Surrey Inn, Inc. v. Jennings, 215 Md. 446, 138 A.2d 658 (1958). In noting that an order sustaining a demurrer is not a final judgment, Chief Judge Brune, speaking for the Court in Surrey Inn, supra, quoted with approval from State, Use of Staylor v. Jenkins,70 Md. 472, 17 A. 392 (1889), where the precise argument pressed before this Court by defendants was raised and decided in plaintiffs' favor:

"According to the prevailing practice in this State, the entry of demurrer sustained, is but the announcement of the opinion of the Court upon the question raised by it; and until formal entry of judgment thereon, the case remains open for amendment or trial of other issues which may be in the case. (citations omitted) The entry of 'demurrer sustaine...