Chandlee v. Shockley

Henderson, J.,

filed the following dissenting opinion.

I agree with the holding of the majority of the Court that Code (1957), Art. 93, sec. 112, creates a new cause of action, and that the time limitation therein is a condition precedent to the right to maintain the action. It follows that the lateness of the action may be invoked by demurrer. The distinction between causes of action created by the Legislature, with conditions attached, which limit the substantive right, and other causes of action existing at common law, as to which the Legislature undertakes to bar the remedy only, is well established both in Maryland and elsewhere. State v. Parks, 148 Md. 477 , and Dunnigan v. Cobourn, 171 Md. 23 , clearly recognize the distinction, which turns on the legislative intent to make time of the essence, and presents a problem of statutory construction.

I do not agree, however, that this Court can properly write in exceptions to the condition imposed by the Legislature, on general equitable grounds. In the Workmen’s Compensation Act, the Legislature added a clause specifically extending the time for filing claim in cases of fraud or circumstances amounting to an estoppel. Code (1957), Art. 101, sec. 39 (c), cited in Webb v. Johnson, 195 Md. 587, 595 , and Patapsco & Back Rivers R. R. v. Davis, 208 Md. 149, 155 . Possibly it was thought desirable to extend additional pro *504 tection to workmen who are sometimes illiterate and not always represented by counsel at the time when claims must be filed. There is no such clause in the statute before us, and its absence is significant. Quite possibly the Legislature felt that the necessity of a fixed rule to insure the early settlement of estates would outweigh the possible injustice to a litigant whose counsel might be so unwary as to rely upon the assurances of a claim adjuster.

The majority opinion relies strongly upon the cases of Bogart v. Willis, 158 Md. 393 , and Frank v. Wareheim, 177 Md. 43 , construing Code (1957), Art. 93, secs. 119, 120. Those cases are clearly distinguishable. While the statute was construed as creating a statutory bar, it was held that since the time did not begin to run until rejection by the executor or administrator, such rejection could be withdrawn. Cf. Donnally v. Welfare Board, 200 Md. 534, 540 . In the instant case the time runs from the date of qualification by the personal representative, and no such right of withdrawal can be implied.

Strong reliance is placed upon Scarborough v. Atlantic Coast Line R. Co., 178 F. 2d 253 (C. A. 4th). I venture to disagree with the construction placed upon the statute there involved, the Federal Employers’ Liability Act, 45 U. S. C. A., § 56. Perhaps the decision could be supported under the language of § 55. But I find no justification for importing into the Act the broad doctrines of waiver and estoppel. Even in the 4th Circuit the scope of the decision seems to have been somewhat narrowed. See Williams v. United States, 228 F. 2d 129, 132 (C. A. 4th), and Continental Casualty Co. v. The Benny Skou, 200 F. 2d 246 (C. A. 4th). Other Federal and State courts hold to the contrary. American R. Co. of Porto Rico v. Coronas, 230 F. 545, 546 (C. A. 1st) ; Damiano v. Pennsylvania R. Co., 161 F. 2d 534, 535 (C. A. 3rd) ; Bell v. Wabash Ry. Co., 58 F. 2d 569, 572 (C. A. 8th) ; Ahern v. South Buffalo Ry. Co., et al. 104 N. E. 2d 898, 908 (N. Y.); cf. Rohner v. Union Pacific Railroad Company, 225 F. 2d 272, 274 (C. A. 10th), and Glus v. Brooklyn Eastern District Terminal, 253 F. 2d 957 (C. A. 2nd), approving the decision below in 154 F. Supp. 863 *505 (S. D. N. Y.). See also Jordan v. Baltimore & Ohio R. Co., 62 S. E. 2d 806 (W. Va.).

In the Scarborough case, the Court relied upon Osbourne v. United Slates, 164 E. 2d 767 (C. A. 2nd). But in that case the tolling of the statute during war was based upon the suspension, during war, of both rights and remedies. Cf. Frabutt v. New York, Chicago & St. Louis R. Co., 84 F. Supp. 460 (W. D. Pa.) and cases cited. In the case last cited, the construction was predicated upon an established rule of international law, and on the fact that during war, no court was available to which jurisdiction could be ascribed. In both cases it was expressly asserted that the statute would not be tolled where failure to sue was based on waiver or estoppel. Indeed, it may be said that prior to the Scarborough case, in 1949, the cases were all in accord on the proposition that where a new cause of action was set up with a time limitation as a condition precedent, waiver or estoppel could not be set up as a defense to a late filing. See 1 Williston, Contracts (3d Ed.), § 186, p. 718; notes 77 A. L. R. 1044, 1050; 130 A. L. R. 8, 15; 15 A. L. R. 2d 500; 24 A. L. R. 2d 1413, 1418. I see no reason to depart from the great weight of authority in the instant case.

This Court said in McMahan v. Dorchester Pert. Co., 184 Md. 155 , 160: “We conclude that, where the Legislature has not made an exception in express words in the Statute of Limitations, the Court cannot allow any implied and equitable exception to be engrafted upon the statute merely on the ground that such exception would be within the spirit or reason of the statute.” Implicit in the holding in the instant case, that a demurrer will lie, is the premise that the period of limitations is a substantive part of the cause of action, and that the Court’s jurisdiction over the subject matter is limited by the express language of the statute. To argue that jurisdiction of this sort can be conferred by the action or non-action of the parties, is to ignore the fundamental distinction between substantive right and procedural remedy, between jurisdiction over the subject matter, which cannot be conferred by consent, and jurisdiction over the person, which may be conferred by acts amounting to a general appearance. *506 Cf. McCormick v. St. Francis de Sales Church, 219 Md. 422 . The decision in the instant case recognizes the substantive character of the limitation, yet at the same time reads in an exception based on the conduct of the parties. The court in the Scarborough case does not answer this objection, but brushes it aside as “a legalistic distinction,” and says that the proper approach should be “realistic and humane,” rather than “technical and conceptualistic.” I suggest that there is “no inherent magic” in these words. Some cases hold, and some writers support the view, that there is no valid distinction between the two types of statute. We are committed to the contrary view, and hence committed, I think, to the logical consequence.

Judge Horney authorizes me to say that he concurs in the views here expressed.