Jones v. Unsatisfied Claim & Judgment Fund Board

Digges, J., delivered the opinion of the Court. This is an appeal ¡from the Superior Court of Baltimore City (Sodaro, j.) which did not agree with John Richard Jones that he should have been allowed to bring an action against the Unsatisfied Claim and Judgment Fund Board. Jones still contends that the unusual manner in which he was injured was a “hit and run” accident; as it is defined in the general provisions of Art. ⁶⁵ 66 1/2§ 7-620 of the Code (1957, 1970 Repl. VoL), and that he has made “all reasonable efforts,” as required by § 7-620 (5), to identify the car and driver that placed him in the hospital for 188 days with a fracture of the mid-shaft of his left femur.

We agree with him and shall reverse. Jones’ painful story started with a Friday afternoon nap under a tree in Baltimore’s Druid Hill Park on Independence Day, 1969. Asleep on the grass about 15-20 feet from Red Road, he awoke to discover a car driving over his leg. The operator of the automobile, whom Jones described as a five foot seven black man in his mid-thirties, stopped immediately to render aid.

After a brief delay, during which Jones recalled him admitting, “I didn’t see you,” the driver took the appellant to the Maryland General Hospital. Jones remembered the car was a blue Oldsmobile Cutlass with a brown interior. While receiving treatment in the emergency room, Jones saw the driver “moping around in there for quite a while,” but, before any one obtained a statement about the accident from the man, he disappeared unnoticed. In response to questions posed both by the court and his own attorney as to why it did not occur to him to get the man’s name, address, registration number, or check his operator’s permit, Jones testified that during the ride, “It didn’t sort of dawn on me then because I was sort of knotted up.” A similar excuse was offered for the time spent in the emergency room at the hospital: “Well I was in such pain.

I was thinking the hospital would do this.” It is unclear when the police were notified but somehow because of the pellmell of this Fourth of July weekend a policeman did not take an accident report until Monday the 7th. Although Jones claims he described the car at this interview, the officer failed to make any note of this on the accident report. Jones’ employer put him in touch with an attorney who placed the following ad in the personal column of the Afro-American newspaper on July 12 and 15. “WITNESS — If you saw car hit man on grass ⁶⁶ in Druid Hill Park, July 4, 1969, please call . . . or . . . [telephone numbers].” Claiming that “it wouldn’t have done any good” neither the appellant nor his attorney revisited the scene of the accident but, in a colloquy with the trial court, counsel indicated that he checked with the hospital personnel, examined their files and found no mention of the driver. He pointed out that according to the staff it was normal procedure for them to obtain such information, although the record offers no explanation for their omission.

None of these inquiries proved successful. On the basis of this data the trial court ruled to the following effect: 1. Because there was no evidence of flight from the scene of the accident, this was not a true “hit and run” case. 2. Neither Jones nor his attorney had expended all reasonable efforts to ascertain the identity of the car, its owner, or the driver.

This ruling was based on three grounds. a. Jones did not avail himself of the obvious and ample opportunities to inquire into the driver’s identity, or request the hospital to do so. b. The notice was in a newspaper of limited circulation, and c. The report to the police was perfunctory and not given soon enough after his arrival at the hospital.

Finally, making an inquiry under § 7-618, Judge Sodaro ruled there was no collusion involved in the claim, although he recognized the great opportunity for defrauding the Fund in this type of case. While Jones has obviously not questioned this last observation, he has sharply contested the decision on points 1 and 2. Having concluded that both were erroneously decided, we shall first deal with the definition of a “hit and ⁶⁷ run” accident and then consider whether all reasonable efforts have been made to identify the malefactor and bring him to justice. “Hit and Run” Two subtitles of the newly renumbered Article 6614 come into play in attempting to define “hit and run.” It should be immediately noted that in neither subtitle 7 (Financial Responsibility and Unsatisfied Claim and Judgment Fund) nor subtitle 10 (Accidents and Accident Report) does the term “hit and run” appear as official statutory language. In the controlling statute in this case, § 7-620, the critical term only appears in quotation ma/rks in the section heading, a practice which is consistently followed in the two other “hit and run” provisions of subtitle 7, §§ 7-622 and -623.

The term does not appear at all in §§ 10-102 through -105, and -109, the sections which attempt to define the criminal aspects of what is commonly described as a “hit and run.” Section 7-620 seeks to isolate the one factor which differentiates a hit and run from other accidents. The words the legislature has chosen to do this make it clear that their concern, at least in terms of compensating innocent victims, is not with flight per se but with the determination that the “identity of the motor vehicle and of the operator and owner thereof cannot be ascertained.” It would indeed be a rare exercise of statutory construction to allow a quoted term from a section title to override the clear and precise definitional terminology appearing in the body of the statute. This identical issue, dealing with a comparable statute, has been before every level of the New York court system and decided adversely to the appellee’s suggested interpretation of the law. 1 Riemenschneider v. Motor Veh. Acc.

Indem. Corp., 47 Misc. 2d 549 , 262 N.Y.S.2d 950 (1965), aff’d, 26 A.D.2d 309 , 274 N.Y.S.2d 71 (1966) (App. Div. divided 3-2), aff’d, 20 N.Y.2d 547 , 285 ⁶⁸ N.Y.S.2d 593, 232 N.E.2d 630 (1967) (Ct. of App. divided 4-3). In that case the claimant was a passenger in a car struck from the rear at a highway toll booth. Riemenschneider’s driver immediately got out of his car, inspected both vehicles, found no damages and asked if the passengers were all right.

Upon receiving an affirmative answer to this inquiry he saw no reason to jot down any vehicle information. By the time the claimant arrived at home lower back injury symptoms appeared. The New York uninsured motor vehicle statute in that case used the phrases “whose identity is unascertainable” and “cannot be ascertained” to define accidents where the identity of the offending driver and vehicle remains unknown.. The majority opinion in the New York Court of Appeals viewed this language as much more inclusive than the colloquialism “hit and run,” noting that the precise terminology in the statute: “encompasses situations where the operator is unidentified and has left the scene of the accident because there was then no reason to identify him, as well as an operator who actually prevents identification by leaving the scene.” 285 N.Y.S.2d at 595 .

While recognizing the strong reluctance expressed in the minority appellate opinions in Riemenschneider to apply a general concept of “hit and run” to a situation where there has not been immediate flight from the scene of the accident, we think the reasoning of the majority is much more sound in not placing restrictive definitional burdens on victims of motor vehicle accidents who are unable to identify the offender, whether it be the case of a colloquially technical “hit and run” or a dishonest “Good Samaritan” who renders aid but does not identify himself as required by law. Art. 66V2, § 10-104; Luke 10: 30-37. The claim made under the general provisions of § 7-620 by the injured party that “the identity of the motor vehicle and the operator and owner thereof cannot be ascertained” is basically a statement of fact, not a categorical imperative. It only calls, at the initial stage of the proceédings, for a preliminary determination that the claimant has been injured by an anonymous car.

Whether ⁶⁹ he has made “all reasonable efforts” to discover the identity of the offending driver, both at the time of the accident and afterwards, is a question to be asked under subsection (5) of § 7-620. In this regard, counsel for the Fund has urged that what Jones has done was neither reasonable nor enough. All Reasonable Efforts Although the verbal expression “cannot be ascertained” merges with the idea that all reasonable efforts must be expended to identify the tortfeasor, we think it is essential that the definition and the investigative condition precedent to recovery are not confused. The fact that the victim “could have made an identification” at the time of the accident, and, with a valid excuse, missed this opportunity, should not prevent him from attempting to locate the tortfeasor as soon as practicable thereafter.

Interpreting a comparable statute, the New York courts have made this distinction clear. If there was a reasonable impediment to identification at the time of the occurrence, the claimant has not been barred from relief, provided he subsequently made every reasonable attempt to identify and locate the offender. The apparent absence of personal injury and property damage; the claimant’s disability {i.e. unconsciousness, a child of tender years, etc.) ; misleading acts by the offending driver or confusion with police reports — have all been factors which amounted to reasonable impediments to immediate identification. Riemenschneider v. Motor Veh.

Acc. Indem. Corp., supra ; McKay v. Motor Vehicle Accident Indem. Corp., 56 Misc. 2d 277 , 290 N.Y.S.2d 234 (1968) ; Petition of Casanova, 36 Misc. 2d 489 , 232 N.Y.S.2d 713 (1962) ; Darby v. Motor Vehicle Accident Indem.

Corp., 52 Misc. 2d 1045 , 277 N.Y.S.2d 302 (1967) ; see, Laufer, Embattled Victims of the Uninsured, 19 Buffalo L. Rev. 471, 483 (1970). The appellee has put great emphasis on the passage of time that elapsed between the occurrence of the injury and the moment the .driver left the hospital. He argues ⁷⁰ that because Jones was obviously conscious and unusually alert during this entire period, it should have been instinctive for him to ask the man who he was. The evidence does not support this contention.

The victim’s injuries and the driver’s apparent intent to fully comply with the law concerning his responsibilities after an accident clearly excuse Jones’ oversight. Looking momentarily at Maryland’s penal “hit and run” statute, Art. 66^, § 10^104, we find that an affirmative duty is placed on the involved driver to render reasonable aid and give his name, address and vehicle registration number to the victims of the accident as well as to the police. If requested he is also required to exhibit his driver’s license to either of these parties. If police are not present, and no one is in a condition to receive it, he must immediately make the same information known at the nearest police station.

It is clear that here the driver only complied with the duty to render aid. While Jones may have theoretically had the time and opportunity to insist on strict compliance with the statutory requirements, we think it was not entirely unreasonable for him to assume, in the absence of indications to the contrary, that since the driver had rendered aid, he would continue to comply with the law and make the appropriate information known either .to his victim, the police or at least the hospital before departing. As for Jones’ ability to insist that the driver identify himself, we see no factual support for this contention at all. The only evidence in the record was that he was in great pain and that he happened to recall a few general physical observations.

The symptoms of traumatic shock could conceivably create a situation in which the victim’s acuity of perception is extremely sharp, but we think it fair to say, in the absence of proof to the' contrary, that after many serious accidents people do not always have their wits about them. In a pedestrian hit and run case it would be grotesquely unfair to impose an unbending duty of instant inquiry on the seriously injured victim. Before going on to discuss Jones’ investigative efforts ⁷¹ beyond this point, two brief observations should be made. The first is that the trial judge’s ruling on the question of fraud or collusion required by § 7-618 should not be confused with an evaluation of the sufficiency of the investigation.

Secondly, we wish to make it clear that a claimant’s failure to make any inquiry at all could be some evidence of fraud, collusion, or a general pattern of indolent or half-hearted inquiry. Judge Sodaro has ruled out collusion, and in view of appellant’s injuries, coupled with his lawyer’s investigation while Jones was confined in the hospital, we detect no pattern of a lackadaisical attempt to locate a real party defendant. Counsel for the Fund has nevertheless urged that Jones’ post-accident investigation was unreasonable from start to finish. He does not suggest that Jones should have done anything in addition to making a police report, running ads in the paper, or inquiring at the hospital.

He only seeks to uphold the trial judge’s ruling that the