Smith v. Gray Concrete Pipe Co.

Levine, J., delivered the opinion of the Court. Smith, J., dissents and filed a dissenting opinion at page 172 infra. We are presented here with the first case to reach this Court pursuant to the “Uniform Certification of Questions of Law Act,” enacted by the General Assembly as Ch. 427, Laws of Maryland, 1972, since codified as Code ¹⁵² (1957, 1960 Repl. Vol., 1972 Supp.) Art. 26, § 161-172.

Section 161 provides: “The [C]ourt of Appeals may answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, or a United States District Court when requested by the certifying court if there is involved in any proceeding before it a question of law of this State which may be deter-minative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Court of Appeals of this State.” The question upon which our opinion is sought here comes to us from the United States District Court for the Eastern District of Virginia with a record consisting of a complaint for damages arising out of a motor vehicle collision occurring in Maryland, and a motion to dismiss the complaint. In brief, the complaint alleges that an accident occurred on July 19, 1970, in Prince George’s County, in which Adolphus Gilliam Bradshaw, III, a minor, was killed. The complaint contains four causes of action: Count one is a claim for compensatory damages by the decedent’s parents based on wrongful death. Code (1957, 1970 Repl.

Vol.) Art. 67, § 1. The legal theory on which count one rests is negligent entrustment against the corporate defendant which was the owner of the truck involved in the collision with the decedent. Count two, which likewise seeks compensatory damages for wrongful death, due to negligent operation, is directed at both defendants, the corporate owner of the truck and the operator, and, as against the former, is based upon respondeat superior. Count three is a survival action, Code (1957, 1969 Repl.

Vol.) Art. 75, §§ 15A, 15B, and Art. 93, § 7-401 (n), brought by the administrator of the decedent’s estate ¹⁵³ against the corporate defendant for negligent entrustment, but, in addition to compensatory damages, seeks punitive or exemplary damages. Count four, also a survival action brought by the administrator, seeks compensatory and exemplary damages, but, in alleging negligent operation and respondeat superior, is patterned on count two. As will later be seen, we are concerned here with counts three and four which incorporate by reference the substantive tort allegations of counts one and two, respectively. Defendants responded to the complaint by filing a motion to dismiss counts three and four “since punitive damages are not allowed by law in cases involving automobile accidents such as this and because this point has previously been decided by the Circuit Court for Prince George’s County, Maryland from which decision no appeal was taken.” Although the motion is silent in this regard, we shall treat it as one filed pursuant to Rule 12 (b) of the Federal Rules of Civil Procedure, for “failure to state a claim upon which relief can be granted.” It is the motion to dismiss that led directly to the order of certification. 1 We are confronted with three threshold questions which defendants contend must be resolved favorably to plain ¹⁵⁴ tiff before we may reach the question which has been certified to us.

Those questions are: (1) Does this Court have jurisdiction to hear an action involving injury resulting from the operation of a motor vehicle or motor vehicles which has not been first presented to the Court of Special Appeals? (2) Is the decision of the Circuit Court for Prince George’s County that punitive damages may not be allowed, binding on any other court in which this case might be filed? (3) Can an administrator recover punitive damages because of an automobile accident? I In contending that this Court has no jurisdiction to hear a case involving an injury arising from the operation of a motor vehicle which has not been presented to the Court of Special Appeals, defendants rely exclusively upon Code (1957, 1968 Repl.

Vol.) Art. 5, § 5A (16) and § 21. Those provisions govern the categories over which the Court of Special Appeals has initial appellate jurisdiction, and the granting of certiorari by both appellate courts. 2 In effect, defendants argue that since this is a tort action, we may not consider the case, our jurisdiction in this sector being limited to those cases in which we have granted certiorari. We disagree. First, with due respect for the Court of Special Appeals, it is clear from the language of Art. 26, § 161 that the Uniform Act which has brought this case here contemplates a decision by the highest tribunal of a state in which there is lacking the controlling precedent sought ¹⁵⁵ by the certifying court.

This view is not attenuated by the fact that this Court has jurisdiction over (motor) tort cases by certiorari only. What defendants overlook in this regard is that the jurisdiction conferred by Art. 26, § 161 is extrinsic to the framework of our traditional appellate function set forth in Art. 5 of the Code. Secondly, in enacting § 161 et seq., the Legislature is presumed to have been cognizant of the jurisdiction of this Court, as delineated in Art. 5, § 5A (16). Since the two statutory provisions are neither irreconcilable nor mutually repugnant, they should be construed in harmony with their respective objects and tenor, Public Service Commission v. Maryland Bay Co., 176 Md. 59 , 3 A. 2d 736 (1939) ; Blades v. Szatai, 151 Md. 644 , 135 A. 841 (1927).

This rule is especially applicable where, as here, we deal with two statutes relating to the same subject matter, Prince George’s Co. v. McBride, 263 Md. 235 , 282 A. 2d 486 (1971) ; May v. Warnick, 227 Md. 77 , 175 A. 2d 413 (1961) ; Balto. Credit Union v. Thorne, 214 Md. 200 , 134 A. 2d 84 (1957) ; Welsh v. Kuntz, 196 Md. 86 , 75 A. 2d 343 (1950), viz., the jurisdiction of this Court. In short, we see the Legislature as having fully intended that this Court should determine all open questions certified under Art. 26, § 161 without regard to whether such questions pertain to substantive matters in which we no longer happen to retain initial appellate jurisdiction. II Prior to bringing this action in the federal court, plaintiffs had filed the same cause of action in the Circuit Court for Montgomery County, Maryland, from which it was removed by agreement, after a dispute over venue, to the Circuit Court for Prince George’s County.

There it came on for hearing before Judge Ralph W. Powers on defendants’ demurrer which, as with the motion to dismiss which attacks the complaint here, challenged in part the sufficiency of plaintiffs’ amended declaration. ¹⁵⁶ The demurrer to those counts which prayed exemplary damages was sustained without leave to amend, Judge Powers having, in effect, ruled that such damages could not be recovered in the absence of an intentional tort and that plaintiffs had not alleged facts showing conduct “ ‘of such an extraordinary character as possibly to be the legal equivalent of intentional or actual malice,’ ” citing Conklin v. Schillinger, infra. Defendants argue here that Judge Powers’ decision regarding exemplary damages is binding upon plaintiffs who, they say, waived further consideration of the same question by the courts of this state when they failed to preserve the point for ultimate determination through the appellate route. Although they do not eo nomine assert res judicata, this is evidently the issue they seek to raise. We entertain considerable doubt that this question is properly before us since, as plaintiffs observe, the circuit court proceedings are neither a part of the record forwarded to this Court by the federal court; nor is this issue within the ambit of the certification, our role being confined to the determination of questions upon which “there is no controlling precedent in the decisions” of this Court.

In any event, we shall assume arguendo for purposes of this opinion that the issue is one which we must reach here. In so doing, however, we intimate no approval of the inclusion of matters in the record extract and brief which are not contained in the record itself. What defendants overlook in contending that plaintiffs are barred due to Judge Powers’ decision, is that after the demurrer was sustained, but before the entry of a final judgment, plaintiffs took a voluntary nonsuit in the circuit court. It is fundamental to the application of the doctrine of res judicata that there must previously have been a final adjudication.

Badders v. Uhler, 233 Md. 441 , 197 A. 2d 120 , cert. denied 377 U. S. 958 (1964) ; Queen City v. Independent, 230 Md. 387 , 187 A. 2d 459 (1963) ; Surrey Inn, Inc. v. Jennings, 215 Md. 446 , 138 ¹⁵⁷ A. 2d 658 (1958). In noting that an order sustaining a demurrer is not a final judgment, Chief Judge Bruñe, speaking for the Court in Surrey Inn, supra, quoted with approval from State, Use of Staylor v. Jenkins, 70 Md. 472 , 17 A. 392 (1889), where the precise argument pressed before this Court by defendants was raised and decided in plaintiffs’ favor: “ ‘According to the prevailing practice in this State, the entry of demurrer sustained, is but the announcement of the opinion of the Court upon the question raised by it; and until formal entry of judgment thereon, the case remains open for amendment or trial of other issues which may be in the case, (citations omitted) The entry of ‘demurrer sustained’ was not a judgment upon which execution for costs could go; or on which an appeal could have been taken. It did not authorize the extension of the judgment by the clerk as he has it in the exemplification record in evidence; and, therefore, did not possess those elements of a final judgment to make the decision on the demurrer in that case conclusive in any future litigation between the parties.’ ” 215 Md. at 455-56 (emphasis in original). In 2 Freeman on Judgments, § 748, in which State, Use of Staylor v. Jenkins, supra, is cited, it is aptly stated: “A judgment or decree of dismissal after demurrer sustained because the plaintiff’s pleading does not state a cause of action does not bar a new action on sufficient pleadings.

Thus where the plaintiff, after a decision sustaining a demurrer to his petition or complaint, whether or not leave to amend is given, does not stand upon his pleading but prevents the case from going to a final judgment by voluntarily dismissing or discontinuing it, he is not barred ¹⁵⁸ from bringing a new action since the judgment is not on the merits but is a mere dismissal.” Furthermore, it appears that plaintiffs’ amended declaration contained five counts, of which merely three were the subject of Judge Powers’ ruling, thereby leaving the remaining two unaffected by his decision. Thus, without the “express determination that there [was] no just reason for delay [nor without] an express direction for the entry of judgment” required by Rule 605 a, Judge Powers’ ruling does not suffice to invoke the doctrine of res judicata. Parish v. Milk Producers Ass’n, 250 Md. 24, 96-98 , 242 A. 2d 512 (1968). Ill Without calling our attention to any authority which directly supports their position, defendants argue that the claims for punitive damages must fall because an administrator cannot recover exemplary damages.

Since a survival action is a creature of statute, they maintain that such damages should not be allowed, absent an express provision therefor in the statute. They also point to the denial of exemplary damages in the parallel wrongful death action, Baltimore & Ohio R.R. Co. v. Kelly, 24 Md. 271 (1866), as authority for their position, claiming, in effect, that plaintiff seeks indirectly what even he concedes he cannot obtain directly. We find no merit in either argument. The early history of Maryland’s Wrongful Death Statute, the Survival Statute and the statute permitting a personal representative to recover those damages which his decedent might have recovered was carefully traced by our predecessors in Stewart v. United Electric Light and Power Co., 104 Md. 332 , 65 A. 49 (1906).

There, the differences between a wrongful death action and one brought by a personal representative were sharply defined, and no useful purpose would be served by a review here. It seems clear to us that the rationale for precluding exemplary damages in wrongful death ac ¹⁵⁹ tions — that the statute creating the cause of action limits the recoverable damages — has no application to an action brought by the personal representative, which is not a new cause of action at all, but one which the decedent could have maintained in the event he had lived. Stewart, supra. While this Court has not previously been called upon to decide this question, courts elsewhere have uniformly rejected the contention made by defendants, and have held that a personal representative may recover exemplary damages under statutes similar in language to that relied upon here by plaintiffs.

In Reynolds v. Willis, 209 A. 2d 760 (Del. 1965), a case where a claim similar to that which is made here was brought under a statute resembling our own, the Supreme Court of Delaware upheld a recovery of exemplary damages. In allowing exemplary damages under the Pennsylvania Survival Statute, the court in Hennigan v. Atlantic Refining Co., 282 F. Supp. 667 (E.D. Pa.), aff’d 400 F. 2d 857 (1967), aptly stated: “Furthermore, since the function of punitive damages is to punish outrageous conduct and to discourage similar conduct in the future, Restatement, Torts, § 908, Comment (a) (1939), it would appear to be inconsistent to disallow such an award where the conduct of the defendant is not only reprehensible but in fact results in death.” 282 F. Supp. at 683 . The same view, slightly paraphrased, appears in Leahy v. Morgan, 275 F. Supp. 424, 425 (E.D. Iowa 1967), where the court said: “The public policy underlying exemplary damages is to punish the wrongdoer. Logic dictates that if a wrongdoer may be punished if his victim lives, then surely he should not escape retribution if his wrongful act causes a death.” The same reasoning was applied in upholding recovery ¹⁶⁰ of exemplary damages under the Florida Survival Statute, Atlas Properties, Inc. v. Didich, 226 So. 2d 684 (Fla. 1969).

Kern v. Kogan, 226 A. 2d 186 (N.J. Super. Ct., 1967) and Worrie v. Boze, 96 S.E.2d 799 (Va. 1957) are to like effect. We find the rationale of these authorities unassailable, and agree with the logic “that if a wrongdoer may be punished if his victim lives, then surely he should not escape retribution if his wrongful act causes a death.” Leahy v. Morgan, supra. Thus, we hold that a persona! representative may recover exemplary damages in those cases where they might have been awarded to the decedent, whose estate he administers, had the former survived.

IV Although this case has been certified to us for the reason “that the question as to whether the plaintiffs have stated a claim upon which punitive damages can be granted is a substantial matter within the case and one upon which there is no controlling precedent in the decisions” of this Court, there have been two Maryland cases which have touched upon the subject of exemplary damages in suits arising out of motor vehicle operation: Conklin v. Schillinger, 255 Md. 50 , 257 A. 2d 187 (1969) and Davis v. Gordon, 183 Md. 129 , 36 A. 2d 699 (1944). In Davis , where there was an appeal from a judgment against a motor vehicle operator, a question was raised concerning jury instructions which allowed for exemplary damages. In reversing, this Court held that it was error for the trial court to give those instructions. We said there, in quoting from the decision of our predecessors in Philadelphia, W. & B. R.R. Co. v. Hoeflich, 62 Md. 300, 307 , 50 Am.

Rep. 223 (1884) : “ ‘ [T] o entitle one to [exemplary] damages there must be an element of fraud, or malice, or evil intent, or oppression entering into and forming part of the wrongful act.’ ” 183 Md. at 133 . ¹⁶¹ In Conklin, supra, where the trial judge ruled that punitive damages could not be recovered, the argument was advanced in this Court that Davis , if properly interpreted and reconciled with other decisions of this Court, did not preclude exemplary damages. It was also contended that Davis did “not hold that punitive damages may be recoverable only if the defendant intentionally injures a victim with his automobile, but instead allows punitive damages when an automobile driver causes injury by his intentional disregard of his duty of due care for the safety of others.” 255 Md. at 71 . For reasons not here relevant, we held in Conklin that the issue of exemplary damages was not properly preserved for appellate review, and, in any event that, had the issue been properly before us, “there were not sufficient facts in the . . . case which would have justified the trial court in submitting the issue of punitive damages to the jury.” 255 Md. at 76 . However, Judge Barnes, speaking for the Court, said: “We think it is clear that none of the decisions in this Court has held that in no conceivable set of facts there may not be a recovery of punitive damages in a tort case seeking damages for personal injuries resulting from the use of automobiles, and the opinion in Davis suggests that there may be recovery of punitive damages in the event of an intentional, malicious injury in automobile cases.

The difficulty in the Maryland cases arises in regard to factual situations in which there is no evidence of actual intent to injure or of actual malice toward the injured person, but in which the defendant’s conduct is of such an extraordinary character as possibly to be the legal equivalent of such actual intent or actual malice, sometimes described as ‘wanton,’ ‘reckless disregard of the rights of others,’ and the like. We rather agree that in this latter type of situation, the language of some of the Maryland cases needs further interpretation and ¹⁶² possible reconsideration to reach a more clear-cut rule, but unfortunately the present case is not one in which we can accomplish this desirable result [.]” 255 Md. at 71 (emphasis in original). We see in the present case the occasion for such further interpretation that was lacking in Conklin . While we have not heretofore approved an award of exemplary damages in motor vehicle cases, such damages have been allowed in this state in a variety of tort cases.

Some of those cases are: Summit Loans, Inc. v. Pecola, 265 Md. 43 , 288 A. 2d 114 (1972) (invasion of privacy); Drug Fair v. Smith, 263 Md. 341 , 283 A. 2d 392 (1971) (assault and battery, false imprisonment and malicious prosecution) ; Great Atl. & Pac. Tea Co. v. Paul, 256 Md. 643 , 261 A. 2d 731 (1970) (assault and battery, slander and false imprisonment); Vancherie v. Siperly, 243 Md. 366 , 221 A. 2d 356 (1966) (assault and battery) ; Fennell v. G.A.C. Finance Corp., 242 Md. 209 , 218 A. 2d 492 (1966) (libel); McClung-Logan v. Thomas, 266 Md. 136 , 172 A. 2d 494 (1961) (trover and conversion) ; Nichols v. Meyer, 139 Md. 450 , 115 A. 786 (1921) (trespass de bonis asportatis). Concerning the allowance of exemplary damages in motor vehicle cases, what may be regarded as “the general rule” is succinctly stated in 61A C.J.S. Motor Vehicles § 560: “In general, exemplary damages may not be recovered in a case involving an ordinary collision caused by negligence on a highway, in the absence of any intentional, malicious, willful, or wanton act. In proper cases, however, punitive damages may be allowed as a means of enforcing the rules governing the use of the highways by the drivers of motor vehicles, and such damages have been permitted for recklessness, wantonness, or willfulness on the part of the oper ¹⁶³ ator of a motor vehicle, and also for gross negligence.” (emphasis added) Similarly, in 22 Am.Jur.2d, Damages, § 244, it is stated that: “It is well established that if, while operating a motor vehicle, the defendant’s misconduct, which proximately caused personal injury or death, was sufficiently offensive, an award of exemplary or punitive damages may be sustained.

While there may be some theoretical differences between the tests applied to determine whether the defendant’s misconduct was sufficiently offensive, all of the tests convey the general idea that exemplary damages may be awarded where the defendant’s misconduct is so flagrant as to transcend simple negligence and be tantamount to positive or affirmative misconduct rather than passive or negative misconduct. In characterizing the requisite positive misconduct which will support a claim for punitive damages, the courts have used such descriptive terms as wilful, wanton, grossly negligent, reckless, or malicious, either alone or in combination.” (emphasis added) Applying one or more of the tests enumerated above, exemplary damages arising out of motor vehicle operation have been approved in numerous cases decided in a significant number of the states since the seminal case of Buford v. Hopewell, 140 Ky. 666 , 131 S. W. 502 (1910). 3 The numerous decisions dealing with this is ¹⁶⁴ sue, a complete listing of which would belabor this opinion, leave no doubt that, in the proper case, the allowance ¹⁶⁵ of exemplary damages in motor vehicle cases in this country is part of an increasing trend that is merely gaining in momentum. The problem which emerges from a survey of the decisions, as we recognized in Conklin, supra, is in fashioning a test which does not depart from our prior decisions, but which recognizes that there may be “factual situations in which there is no evidence of actual intent ¹⁶⁶ to injure or of actual malice toward the injured person, but in which the defendant’s conduct is of such an extraordinary [or outrageous] character as possibly to be the legal equivalent of such actual intent or actual malice, sometimes described as ‘wanton,’ ‘reckless disregard of the rights of others,’ and the like.” Conklin, supra, at 71 (emphasis in original). At the same time, we perceive from some of the reported decisions the danger of formulating a test which may be so flexible that it can become virtually unlimited in its application.

Our inquiry focuses now on whether, as defendants contend, Davis, supra, restricts the allowance of exemplary damages to factual situations which reveal an actual intent to injure or actual malice. This question must be approached by an examination of the facts disclosed by the opinion in that case. At the very outset, it should be noted that contrary to defendants’ argument, there was no evidence in Davis of drinking by any of the parties; nor, apparently, was there evidence of excessive speed. Davis, the driver, testified that he was blinded by the lights of two oncoming vehicles.

Thus, the sole instance of improper conduct attributed to Davis was his flight from the scene which, although perhaps relevant, was not a causative factor in the accident. No test or standard that would allow exemplary damages on such meager facts has been urged upon us,