Flores v. King

Gilbert, J., delivered the opinion of the Court. This appeal involves an interpretation of Section 4 of Maryland’s version of Lord Campbell’s Act as codified in Article 67. 1 According to appellants’ declaration, Gustavo G. Flores was killed in a motor vehicle collision in Montgomery County, Maryland. Flores left surviving him a widow, Natividad A. Flores; an infant son, Gustavo U. Flores; an infant daughter, Minerva G. Flores, and an infant stepdaughter, Leticia Armenta Flores. Appellees timely filed general issue pleas to all counts ²⁷² of appellants’ declaration, except “Count IV.” To that count they demurred and assigned as reasons therefor that the count, brought on behalf of the stepdaughter for the wrongful death of her stepfather, did not, as a matter of law, entitle the stepdaughter to assert a claim under the circumstances alleged in the suit.

The trial judge agreed with appellees and sustained their demurrer to the count, without leave to amend. Appellants then filed an appeal to this Court. We shall dismiss the appeal sua. sponte. Rule 1035.

The order appealed from is not final. An appeal in an action at law is allowed only from a final judgment or determination. Maryland Code, Art. 5, § 1. Maryland Rule 605 a. provides : “Where more than one claim for relief is presented in an action, whether as an original claim, counter-claim, cross-claim, or third party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.

In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.” (Emphasis supplied.) The trial judge was. not asked to make an express determination that there was no reason for delay, nor was he requested to make an express direction for the entry of judgment. Absent such express determination and direction, the appeal is premature. “The purpose of this rule * * * was to prevent piecemeal appeals as far as possible, and therefore avoid the confusion, delay and expense ²⁷³ which would be caused by having two or more appeals in the same suit.” Picking v. State Finance Co., 257 Md. 554, 557 , 263 A. 2d 572 (1970) ; Knight v. Tolson, 10 Md. App. 311, 313-314 (1970). Disposition of this case is controlled by a consistent series of opinions by the Court of Appeals. Durling v. Kennedy, 210 Md. 549 , 123 A. 2d 878 (1956) ; Harkins v. August, 251 Md. 108 , 246 A. 2d 268 (1968) ; Silverman v. National Life Ins.

Co., 255 Md. 148 , 257 A. 2d 156 (1969) ; Fletcher v. National Brewing Co., 255 Md. 580 , 258 A. 2d 410 (1969) ; Schafer v. Bernstein, 256 Md. 218 , 260 A. 2d 57 (1969) ; Harlow v. Blocher, 257 Md. 1 , 262 A. 2d 58 (1970) ; Picking v. State Finance Co., supra; See also Knight v. Tolson, supra. In the interest of preventing costly future litigation by the parties to this action we shall comment upon the merits of the case which would be raised by a proper appeal. Article 67, § 4, provides in part: “(a) Every such action shall be for the benefit of the wife, husband, parent and child of the person whose death shall have been so caused or if there be no such person or persons entitled then any person related to the deceased by blood or marriage, who, as a matter of fact, was wholly dependent upon the person whose death shall have been so caused. ‘Parent’ shall include the mother of an illegitimate child whose death shall have been so caused; ‘child’ shall include an illegitimate child whenever the person whose death is so caused is the mother of such child; ❖ 99 Appellants argue that the stepdaughter was completely dependent upon the decedent for her support and could have reasonably expected to continue to receive support had not the decedent met his unfortunate death. We are ²⁷⁴ urged to judicially interpret the noun “child” as used in the statute so as to include “dependent stepchild.” We decline to do so.

The negligence causing death statute is in derogation of the common law, and, therefore, should be strictly construed. McKeon v. State, Use of Conrad, 211 Md. 437, 443 (1956) ; Demczuk v. Jenifer, 138 Md. 488 (1921) ; Dunnigan v. Cobourn, 171 Md. 23 (1936). The statute indicates that either of two classes of persons may be entitled to recover in a wrongful death action, and establishes their priority. It is, therefore, disjunctive and not conjunctive in nature.

The primary class is the “wife, husband, parent and child” of the person whose death has been caused by a wrongful act, neglect or default. The secondary or alternate class consists of any person or persons who may be “related to the deceased by blood or marriage,” who were “wholly dependent upon” the decedent. However, in order for the secondary or