Nicholson v. Unsatisfied Claim & Judgment Fund Board

Digges, J., delivered the opinion of the Court. This is an appeal from the Circuit Court for Anne Arundel County where Judge Evans denied the petition of Rufus Nicholson, Mary Reddick and Mood Gibson, ⁴⁵⁵ appellants, for leave to sue the Commissioner of Motor Vehicles under the Unsatisfied Claim and Judgment Fund Law. 1 The facts are quite simple and not the subject of dispute. On July 17,1966, while passengers in a car owned and operated by John Martin, Jr., appellants were involved in an accident on Queenstown Road in Anne Arundel County, which allegedly occurred when an unknown automobile was driven into their lane of traffic. In an effort to prevent a collision with this errant vehicle, Martin supposedly swerved his car but, though successful in his primary objective of avoiding contact with the intruder, lost control of his own automobile which ultimately turned over.

Meanwhile, the catalyst of the mishap, the unmolested phantom car, disappeared down the highway. As a result of this accident, the passengers, on July 2, 1967, filed a petition for leave to sue the Commissioner of Motor Vehicles alleging that the crash was not caused by Martin, who was driving in “a careful and prudent manner,” but instead resulted from the negligence of the unidentified motorist. The application was explicitly brought under Maryland Code (1957, 1967 Repl. Vol.), Art. 66%, § 167.

(In 1970 the Legislature by Ch. 534 of the Laws of Maryland repealed and re-enacted that Article so that § 167 is now codified in the Code (1957, 1970 Repl. Vol.) as Art. 66%, § 7-620.) In the event the offending driver is unknown, that section enumerates the requirements which victims of hit and run accidents must comply with before being permitted to initiate suit against the Board. In a memorandum opinion Judge Childs denied the petition after concluding that there was ⁴⁵⁶ no phantom car, 2 and even if “there were shown to be a second vehicle the Court is not satisfied that reasonable efforts were made to ascertain the identity of the phantom” as required by § 167 (f), now § 7-620 (5). This section necessitates a finding by the court that: “All reasonable efforts have been made to ascertain the identity of the motor vehicle and of the owner and operator thereof and either that the identity of the motor vehicle and the owner and operator thereof cannot be established, or that the identity of the operator, who was operating the motor vehicle without the owner’s consent, cannot be established.” Though it is unnecessary for us to decide whether the passengers made all reasonable efforts to identify the driver of the other automobile, our review discloses a record devoid of any evidence which indicates the appellants made even the slightest cursory attempt to uncover information concerning the phantom.

In light of our recent decision in Grady v. Unsat. C. & J. Fund Bd., 259 Md. 501 , 270 A. 2d 482 (1970), with a factual pattern akin to the one here, where we held bare minimal efforts were not sufficient to satisfy the requirements of § 167 (f), an appeal claiming error in Judge Childs’ ruling would not have been successful. See also Hickman v. Unsatisfied C & J Fund, 255 Md. 267 , 257 A. 2d 426 (1969). Following denial of their petition, appellants filed suit against Martin.

The trial court, pursuant to the procedures outlined in Rosenberg v. Manager, U. C. & J. F. Bd., 260 Md. 164 , 170, 271 A. 2d 692 (1970), instructed ⁴⁵⁷ the jury under Maryland Rule 560 to deliver a special verdict which would specify whether Martin was negligent in operating his car on that Juty day in 1966 or if the mishap was caused by an unknown motorist. The jury decided Martin was not at fault but that the accident resulted from the action of a phantom driver. Having been twice frustrated but now armed with a jury determination that a phantom car did exist, appellants, on August 10, 1970, again petitioned the Circuit Court for Anne Arundel County for leave to sue the Board, this time under § 7-622 of Art. 66V^ of the Code. 3 That section in part provides: “Other ‘hit-and-run’ cases. (a) When in an action . . . judgment is rendered for the defendant on the sole ground that the death or personal injury was occasioned by a motor vehicle— (b) The identity of which, and of the owner and operator of which, has not been established (c) . . . — such cause shall be stated in the judgment and the plaintiff in the action, within three months from the date of the entry of such judgment, may make application for authority to bring an action upon the cause of action against the Board in the manner provided in §§ 7-620 and 7-623 of this article. 4 (Emphasis added.) Judge Evans denied this latest request after deciding ⁴⁵⁸ that: “Petitioners are barred by the doctrine of res judicata from a trial de novo on the question of the exertion of ‘all reasonable efforts’ to ascertain the identity of the ‘phantom vehicle’, its owner or operator as required by Section 7-620 (5).” This appeal is taken from that ruling.

Appellants’ sole contention is that Judge Evans erred by concluding Judge Childs’ initial denial of leave to sue under the Unsatisfied Claim and Judgment Fund Law constituted a bar to their bringing this later application. We do not agree. In determining whether the well established doctrine of res