Bertonazzi v. Hillman, Adm'x

Hammond, J., delivered the opinion of the Court. This case turns on whether the period of limitations of six calendar months after the date of qualification by the personal representative of a deceased tort-feasor prescribed by Code (1964 Replacement Vol.), Art. 93, § 112, was tolled by a suit brought in a county in which neither the decedent nor his administratrix resided. The appellant was injured in March 1962 by the alleged negligence of an employee of Edward Hillman, who operated a parking lot. The appellant’s lawyer made claim against Hill-man’s insurer and there were dealings and negotiations between them from July 1962 to March 14, 1963, when the lawyer filed suit on behalf of his client against Hillman individually in Baltimore County after he had looked at a map and, as he testified, “read it wrong,” and decided that Hillman’s house, which was close to the line, was in the County rather than in the City.

Hillman had died in January, some forty-four days before suit was filed, a fact the lawyer found out as the result of the return of the sheriff of mortuus esl, when he examined the docket shortly before July 18, 1963. He was much disturbed, in his words “panic stricken,” at the discovery since he feared that limitations might already have run if the period began at Hillman’s death or would soon run if it began with the qualification of his personal representative, and on July 18 he again filed suit in Baltimore County against Mrs. Hillman as administratrix of her husband, although he had learned she had qualified in the Orphans’ Court of Baltimore City on February 6, 1963. The lawyer called Mrs. Hillman and, accord ³⁶⁴ ing to his recollection, told her of the suit and advised her that there were “some technicalities in the case that might prevent a legitimate adjudication,” and she replied that she would have no objection to a proper determination of the facts and referred him to her lawyer for further inquiries and discussion. The appellant’s lawyer then called Mrs. Hillman’s lawyer and told him of the suit, the problem of proper venue, and, according to appellant’s lawyer, of the problem of limitations.

Mrs. Hill-man’s lawyer said he would accept service of process on behalf of Mrs. Hillman in the Baltimore County suit but that in so doing he was not consenting to jurisdiction. Appellant’s lawyer says he told him he hoped to have that suit “removed to the City by agreement or something * * * and litigated.” The definite recollection of Mrs. Hillman’s lawyer was that absolutely no mention was made of limitations because “obviously if there had been any question of limitations I would not have undertaken to accept service * * * it immediately would have been a red flag to me.” Service of process was accepted by Mrs. Hillman’s lawyer on July 23, 1963. On August 19, 1963, some six months and fourteen days after Mrs. Hillman had qualified, an appearance was entered for her by a lawyer other than he who had accepted service on her behalf, and there was filed a motion to quash on the ground that Mrs. Hillman lived in Baltimore City and had qualified as administratrix there. The motion was granted and the suit dismissed on September 4, 1963.

An hour or two later, appellant’s lawyer refiled the suit in Baltimore City. After various preliminary pleading maneuvers, in the course of which Judge Byrnes rejected appellant’s contention that the Baltimore County suit tolled the statutory period of limitations in § 112 of Art. 93, appellant’s lawyer filed a “Plea of Estoppel as to the Statute of Limitations,” in which he endeavored to set up facts showing that limitations had been waived or that Mrs. Hill-man was estopped to assert limitations, largely, if not entirely, on the basis of the telephone conversation between appellant’s attorney and Mrs. Hillman’s attorney. Thereafter, the depositions of appellant’s lawyer and Mrs. Hillman’s lawyer were taken and Judge Carter then granted Mrs. Hillman’s motion for a summary judgment. ³⁶⁵ We see no support whatever in the record for a finding of waiver or estoppel. Neither in the plea of estoppel nor in a long letter to Judge Byrnes is there mention of or reference to any express promise or agreement of Mrs. Hillman or her lawyer to waive the statute.

It may well be that appellant’s lawyer had the notion that the mere acceptance of service would toll the statute, but if he did, nothing that Mrs. Hillman or her lawyer said or did inspired or fostered the idea. There is no assertion that the representatives of Mr. Hillman’s insurer led appellant to believe that liability would not be contested or that any legal defense would be waived. Appellant’s lawyer, apparently in entire good faith, appears simply to have relied on his belief that the suit against the administratrix must be filed in Baltimore County because the original suit against her decedent had been and his hope that the suit either would be tried there or “removed to the City by agreement or something.” Appellant can have the case heard on the merits only if the filing of the suit in Baltimore County tolled the statutory period of limitations long enough for the final suit in Baltimore City to have been filed in time. Appellant’s difficulty would not arise in the federal system or in most of the states of the Union; since almost all have statutes which would permit the transfer of the case from one jurisdiction to another without the need for new service of process or “saving” statutes which, after a plaintiff, in a timely filed suit, finds himself out of court on a ground other than the merits, permit a second suit on the same cause of action within a specified time.

Some states have both types of statute. Maryland is one of the very few states that has neither. Nevertheless, we are persuaded that the six months’ limitations period was tolled when, in the words of the proviso in § 112 of Art. 93, the appellant, in order to recover damages for injury to her person, commenced an action in Baltimore County within six calendar months after the date of the qualification of the administratrix. The effort to seek redress in a court of law against Hillman’s estate was made in good faith, although inartificially both on the facts and under the law.

The Baltimore County court had jurisdiction of the subject matter and it had power to issue process which could be effectively served on a defendant anywhere in the State. Md. Rule ³⁶⁶ 104. Maryland Rule 5 a. defines “action” as including “* * * all the steps by which a party seeks to enforce any right in a court of law or equity.” Appellant took steps to enforce a right in Baltimore County and under Rule 140, which states that “an action at law shall be commenced by filing a declaration * * * or other original pleading,” the steps she took amounted, under the literal language of the Rules, to commencement of an action. Since the Baltimore County court had jurisdiction of the subject matter and of the parties, the case would have been tried and decided on the merits unless the defendant chose to assert the personal right given her by Code (1965 Replacement Vol.), Art. 75, § 75, to avoid the inconvenience of defending a suit in a county in which she neither lived personally or officially nor worked (an inconvenience which, if it existed at all, would have been minimal in the present case) in a timely manner before submitting to the venue.

Md. Rule 323; McCormick v. Church, 219 Md. 422 ; Gemundt v. Shipley, 98 Md. 657 ; Cromwell v. Royal Caw. Ins. Co., 49 Md. 366 ; Yoe v. Gelston, 37 Md. 233; State of Maryland v. Gittings, 35 Md. 169 . There can be no doubt that if the appellee, the defendant below, had not asserted improper venue and the case had remained in Baltimore County, the appellant would have timely commenced an action to recover for personal injuries under § 112 of Art. 93 of the Code, Neel v. Webb Fly Screen Mfg.

Co., 187 Md. 34 , and the statute of limitations built into that section would not have been operative to defeat the claimant’s right to seek damages. We see no compelling reason why the filing of the timely commenced action in court should not have the same effect until its dismissal for improper venue and be deemed to have interrupted the running of the statute from the date of its filing on July 18 to the date of its dismissal on September 4, a period of forty-four days. If forty-four days be deemed to have run from August 5, the period of limitations would have ended on September 18 and the appellant’s third suit, that filed in Baltimore City which is now before us, was filed on September 4. This interpretation of what § 112 of Art. 93 of the Code means when it says that an action must be commenced within six calendar months is consistent with the purposes and aims of limitation statutes generally and of the limitation here involved, ³⁶⁷ that is, it gratifies legislative intent, and is supported by eminent and persuasive authority.

Statutes of limitations are designed primarily to assure fairness to defendants on the theory that claims, asserted after evidence is gone, memories have faded, and witnesses disappeared, are so stale as to be unjust. The six-month statute of limitations in suits against executors or administrators has the added purpose of requiring claimants seeking damages resulting from the negligence of a decedent to make claim by suit within six months so that the personal representative of the decedent can make the prompt settlement of the estate