Rosenberg v. Manager of the Unsatisfied Claim & Judgment Fund Board

Digges, J., delivered the opinion of the Court. This appeal follows from the refusal of the Circuit Court for Baltimore County to grant the appellant, Jay Rosenberg, permission to bring an action against the Unsatisfied Claim and Judgment Fund Board. This dispute began on February 17, 1965 with an automobile collision on the Baltimore Beltway between a vehicle driven by Rosenberg and another driven by Grace Powell Capley, the original defendant in the suit. In the ensuing law action brought by Rosenberg for personal injuries and property damage, Mrs. Capley defended the suit by contending, initially in her answer to an interrogatory and again two years later at the jury trial of the case, that the collision occurred when an unidentified vehicle suddenly moved into her lane of travel, forcing her to swerve left into appellant’s lane.

Although placed on notice of a “phantom vehicle,” Rosenberg never availed himself of Art. 66%, Sec. 169, Code (1957, 1967 Repl. Vol.) which would have permitted him to implead the Unsatisfied Claim and Judgment Fund Board. At the trial of the original case, Judge Proctor, in addition to giving standard instructions defining negligence, proximate cause and burden of proof, told the jury that Rosenberg was as a matter of law free of any contributory negligence. He further explained the “sudden emergency doctrine” by stating in part: “If the Defendant satisfies or persuades your minds by a fair preponderance of the evidence that there was an emergency situation created . . . then the burden remains as it was originally upon the Plaintiff to prove negligence on her part.

If she fails to prove an emergency situation existed, that is, if she fails to persuade your minds that an emergency situation existed, then that would be out so far as a defense on ¹⁶⁷ her part is concerned; but you would still have the Plaintiff being faced with the responsibility of proving negligence on the Defendant’s part, and that her negligence was a proximate cause of the accident.” The docket entries record the jury’s verdict and what followed: “November 27, 1968. Verdict of the jury, in favor of the Defendant for costs. “November 27, 1968, Judgment on Verdict Nisi Causa. December 4, 1968, Judgment on Verdict made absolute in favor of the Defendant for costs.” Rosenberg did not appeal from the final judgment but instead on December 26, 1968 made an application to the court under Art. 66V2, Sec. 168 for authority to bring an action against the Unsatisfied Claim and Judgment Fund Board. Sec. 168 provides: “(a) When in an action . . . judgment is rendered for the defendant on the sole ground that . . . 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, or (c) Which was in the possession of some person other than the owner or his agent without the consent of the owner, and the identity of the operator has not been established, — such cause shall be stated in. the judgment and the plaintiff in such action may, within three months from the date of the entry of such judgment, make application for authority to bring an action upon said cause of action against the Board in the manner provided in §§ 167, and 169 of this article.” (Emphasis added.) ¹⁶⁸ Even though the judgment does not state that the accident was caused by an unidentified motor vehicle, Rosenberg brushes aside the specific wording of Sec. 168 (c), claiming that substantial compliance with that section is all that is necessary.

He tells us that when the existence of an unidentified motor vehicle as the proximate cause of the accident was “. . . the sole defense raised by the defendant [and] therefore the sole issue to be decided by the jury, then it does not have to be so stated in the judgment, because a judgment by the jury in favor of the defendant could only have been decided on the issue submitted to them of an unidentified motor vehicle.” Despite this argument Judge Proctor refused to authorize the suit against the Board. He concluded, correctly we think, that under Sec. 168 it would be impermissible to judicially convert the clear statutory language — “shall be