State, for Use of Dunnigan v. Cobourn

• Decision Date: 12 November 1936
• Docket Number: 11.
• Citation: 187 A. 881,171 Md. 23
• Parties: STATE, FOR USE OF DUNNIGAN, ET AL. v. COBOURN ET AL.
• Court: Maryland Court of Appeals

187 A. 881

171 Md. 23

STATE, FOR USE OF DUNNIGAN, ET AL. v. COBOURN ET AL.

No. 11.

Court of Appeals of Maryland

November 12, 1936

Appeal from Circuit Court, Cecil County; Wm. Mason Shehan, Thomas J Keating and J. Owen Knotts, Judges.

Action by the State, for the use of Corinne C. Dunnigan, against Frederick Lee Cobourn and another, as administrators of the estate of Reese M. Bowman. From a judgment for defendants the plaintiffs appeal.

Affirmed.

Argued before BOND, C.J., and URNER, PARKE, SLOAN, MITCHELL, and JOHNSON, JJ.

Edwin H. W. Harlan, of Bel Air, for appellants.

Robert H. Archer and Daniel E. Klein, both of Baltimore (Tydings Sauerwein, Levy & Archer, of Baltimore, on the brief), for appellees. JOHNSON, Judge.

This is the second time this case has come before us. In the first appeal, reported in 169 Md. 110, 179 A. 512, we dealt solely with the right of the equitable plaintiffs to exercise their constitutional right of removal, without regard to whether any issues had at that time been raised by the pleadings.

The equitable plaintiffs in the suit are the widow and surviving children, respectively, of Scott Preston Dunnigan, who it is alleged on the 18th day of March, 1934, was a passenger in a motor vehicle owned and operated upon one of the highways of Harford county by Reese M. Bowman in a negligent, careless and unskillful manner, as a result of which said vehicle was caused to overturn, whereby the said Scott Preston Dunnigan was seriously injured, from which injuries he died within 12 months before the institution of the suit, his injuries allegedly having been caused solely by the negligence and want of care on the part of Bowman without any negligence on the part of the said Dunnigan directly contributing thereto. The defendants are the administrators of the personal estate of Reese M. Bowman, and it therefore follows that Bowman, the alleged wrongdoer, departed this life before the institution of this suit, and that this action was instituted under the provisions of section 1 of article 67 of the Code of Public General Laws of Maryland, which, as amended by chapter 570 of the acts of 1929 (section 3), extends the right of dependents to maintain suit against the personal representative of the wrongdoer, provided it be commenced within 6 calendar months after his death. The declaration makes no allegation as to when the death of the wrongdoer occurred, nor that this suit was instituted within 6 months from the date of his death, and the narrow question here presented is whether in an action of this character it is essential that such an allegation be made in the declaration.

It seems beyond dispute that the right here asserted did not exist at common law, and that the statute which confers the right, being in derogation of the common law, must be construed strictly. Volume 2, Lewis' Sutherland Statutory Construction, § 632; Demczuk v. Jenifer, 138 Md. 488, 114 A. 471; Allen v. Seff, 160 Md. 240, 153 A. 54.

It is to be observed that the statute in question, in addition to giving the right of action against the wrongdoer for his wrongful act, neglect, or default, also makes the right applicable as against his executor or administrator, "provided, however, that any such action against the executor or administrator of the said person who would have been liable shall be commenced within six calendar months after the death of the said person who would have been liable." Statutes containing similar phraseology have been considered by many authorities, and, while they may not be in entire uniformity, a vast majority unite in holding that provisos and exceptions similar to the one here used are intended to restrain the enacting clause, and that the time within which the suit must be brought operates as a limitation of the liability itself and not of the remedy alone; that it is a condition attached to right to sue at all, the limitation of the remedy being treated as a limitation of the right; and that the provision which limits the right is to be regarded as a condition precedent. Volume 2, Lewis' Sutherland, Statutory Construction, § 351; Annotation 67 A.L.R. 1070; 17 C.J. p. 1935 (83); Dowell v. Cox, 108 Va. 460, 62 S.E. 272; Poff v. New England Tel. & Tel. Co., 72 N.H. 168, 55 A. 891; Crosby v. Boston Elev. Ry. Co., 238 Mass. 564, 131 N.E. 206; Bennett v. Railroad, 159 N.C. 345, 74 S.E. 883; George, Adm'r, v. Chicago, Milwaukee & St. Paul Railway Co., 51 Wis. 603, 8 N.W. 374; Chandler v. Chicago & Alton Railroad Co., 251 Mo. 592, 600, 158 S.W. 35; State v. Parks, 148 Md. 477, 129 A. 793, 795, and authorities there cited.

In the Parks Case, supra, this court was considering the sufficiency of a declaration filed under section 2 of article 67, and which on its face showed that the husband and father of the equitable plaintiffs died almost 2 years before the institution of the suit. On the basis of the authorities there cited, it was held that the provision of the act requiring that the suit be brought within 12 months after the death of the deceased was a condition precedent to the right to maintain the action, and that, since the declaration upon its face disclosed the suit was not brought within this period, it was bad on demurrer. True, it did not directly hold that the declaration must allege the suit was filed within the 12-month period, since in that case the court found that the equitable plaintiffs by their allegations had definitely placed themselves beyond the statute, but it was there said: "The co...