MacBride v. GULBRO, ADM'X OF ESTATE OF DOTSON

Marbury, J., delivered the opinion of the Court. This action was brought to recover damages for injuries allegedly inflicted on John Emory MacBride, the appellant here, when the vehicle in which he was a passenger collided with a vehicle driven by Leila Lee Dotson on December 13, 1964. Mrs. Dotson, who was killed outright in the accident, died intestate, and Anna E. Gulbro, the appellee here and mother of Mrs. Dotson, qualified as administratrix and letters of administration were granted to her on May 28, 1965. On December 30, 1965, suit was instituted on behalf of MacBride, a minor, by his next friend and attorney, Martin E. Gerel.

At this time MacBride was in the sole custody of his mother, Alberta J. Milburn, who consented to the bringing of the suit. The declaration alleged that more than six months had elapsed since the appointment of the administratrix without suit being filed by the minor’s mother and that suit was being filed by the mi ⁷²⁹ nor’s next friend on his behalf. It also alleged that Mrs. Dotson was negligent in the operation of the vehicle she was driving, that MacBride was free from contributory negligence and that he had suffered serious and permanent injuries. Mrs. Gulbro answered pleading the general issue and that the suit was not brought within six months of her qualification as administratrix.

On August 22, 1966, Mrs. Gulbro filed a motion for summary judgment pursuant to Maryland Rule 610, alleging that there was no dispute as to any material fact and that the defendant was entitled to judgment as a matter of law. Argument on the motion was heard by Judge Dyer on November 1, 1966, and he granted the motion on that date. From the granting of the motion and the judgment entered pursuant thereto, the appellant has appealed. The appellant relies on Code (1957), Article 57, Section 2, which gives persons under disability the right to claim the full period of limitations provided in Article 57, Section 1, after their disability has been removed, and the case of Funk v. Wingert, 134 Md. 523 , 107 Atl. 345 , holding that the disability is not removed simply because a minor or non compos mentis is able to sue by a next friend or committee.

In the Funk case, supra, this Court construed Code (1912), Article 57, Section 2, which is almost identical to our present Article 57, Section 2, and decided that the appointment of a committee for a lunatic did not remove his disability and start the period of limitations to run. Conceding that this is the rule, it does not help the appellant’s case. Here there is no question of removal of a disability to allow the three year period of limitations on a tort action to run. This case involves a statutory cause of action which provides for its own special period of limitations.

At common law no action could be brought against an executor or administrator of a deceased tort-feasor and the cause of action died with the decedent. In the case at hand the right of action was created by a statute codified as Code (1957), Article 93, Section 112, which embodies a period of limitations. This statute creates a cause of action which did not exist at common law, and being in derogation of the common law is to be strictly construed. Roberts v. Warden, 242 Md. 459 , 219 A. 2d 254 ; Gleaton v. State, 235 Md. 271 , 201 A. 2d 353 ; M. & ⁷³⁰ C. C. v. Balto.

Gas Co., 232 Md. 123 , 192 A. 2d 87 ; Tsoy v. McFarland, 219 F. Supp. 220 . In Burket v. Aldridge, Adm’r, 241 Md. 423, 426 , 216 A. 2d 910 , Judge Oppenheimer, for this Court, said after quoting the pertinent provisions of Article 93, Section 112: “The language of Section 112 is unambiguous,” and after going on to say that suit must be brought against the personal representative of the tort-feasor within six months of his qualification, quoted from Bertonazzi v. Hillman, 241 Md. 361 , 216 A. 2d 723 , as follows: “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