WEINREICH, ADM‘X OF THE ESTATE OF WILLIAM HENRY JAMISON v. WALKER
No. 15, September Term, 1964
Court of Appeals of Maryland
October 15, 1964
236 Md. 290 | 203 A.2d 854
In view of our holding as to the validity of the life estates to the Mitchell children under the common law, we do not reach the question of the extent to which the common law rule has been broadened by the “wait and see” statute.
Decree affirmed, costs to be paid out of the trust estate.
James G. Perry and Martin Moncarz for appellant.
Richard H. Lerch, with whom were Lerch & Huesman on the brief, for appellee.
HAMMOND, J., delivered the majority opinion of the Court. HORNEY, J., dissents. Dissenting opinion at p. 302, infra.
For the appellant, the plaintiff below, to prevail we must find that Judge Carter erred in striking an enrolled judgment in a tort case, on the ground that there had not been valid service of process on the defendant. If he did err, the appellee, the defendant below, and his insurance carrier must pay the judgment; if his action was proper, the appellant will lose her judgment and have only a claim.
On April 9, 1962, William Jamison was crossing the street at an intersection in Baltimore when he was struck by an automobile driven by Robert Walker, the appellee. Jamison died soon after the accident, as a result thereof, and his daughter, the appellant, was appointed administratrix of his estate. She employed a lawyer to recover damages for her father‘s expenses and suffering resulting from the accident. Walker was insured with the Southern General Insurance Company which had issued to him its policy under the financial responsibility provisions of the law-
The claimant‘s lawyer told Walker that he represented the
The plaintiff below procured an order of court appointing Robert E. Ammons, a member of the Bar of Maryland and an insurance investigator, to execute the service of summons on Walker. Twelve days later, on January 30, 1963, Ammons found Walker at the parking lot in Baltimore where he worked and left with him the summons, declaration, interrogatories and request for admission of facts. Pursuant to
Walker immediately called his insurance agency to tell them of the papers left with him, although he says he thought they were unimportant records of the accident. When he called, he was told the agency was very busy but to bring the papers in to them when he next came in to make a payment. When he went some two weeks later to make a payment he did not bring the papers because “they had slipped his mind” but he “talked with the manager about it” (he did not disclose the manager‘s reply or reaction).
Walker did not plead to the suit and judgment by default
On April 29, the claimant‘s lawyers, anticipating, they say, that an attack would be made by the insurance company on the validity of service on Walker, sent one Bass, a law student and insurance investigator, to check with Walker. He took a statement which Walker signed, saying in part that suit papers had been served on him on January 30, 1963, that he had not yet turned them over to the insurance company but that he had been told to do so by “the man who served them on me,” and that he did on January 30, the day they were left with him, call the insurance company and “tell them about the suit papers.”
Walker mailed the papers to his insurance agent Daly on April 29, the day he gave the statement, and the next day the Southern General Insurance Company filed a motion to strike the judgment, alleging that it was the real party in interest, that the claimant knew she did not have a meritorious claim and knew that judgment could not have been obtained “unless it was obtained surreptitiously and while settlement negotiations were pending,” and that the judgment was obtained “by means of fraud, mistake and irregularity.”
On May 9 Walker filed a motion to strike, alleging obtention of the judgment by “fraud, mistake and irregularity,” in that he “was not apprised, in any substantial form, that service was intended to be made upon him but, on the contrary, * * * was informed and apprised that the documents handed to him were unimportant papers concerning the accident * * *.”
Judge Carter held a full hearing at which he went into the merits of the tort claim and allowed counsel for Walker and his insurer wide latitude (including almost complete invasion of the file over appellant‘s lawyers’ objection that it was their “work product“) in their effort to show a conspiracy on the part of claimant‘s two lawyers, and Ammons and Bass, deliberately and studiedly to obtain a judgment against Walker without allowing him or his insurer to know of it. At the conclusion of the hearing, Judge Carter announced that he had found no Maryland decision in point, but that based on out of state cases he believed the law to be that service is not valid when “a delivery of process is so masked by words or conduct
We think the findings and conclusions of the court and its action in striking the judgment cannot stand. It is firmly established that a court will not set aside an enrolled judgment unless the proof of the existence of one or more of the grounds permitting such action is clear and convincing. Harvey v. Slacum, 181 Md. 206. It is equally well established that a proper official return of service is presumed to be true and accurate until the presumption is overcome by proof and the mere denial of personal service by him who was summoned will not avail to defeat the sworn return of the official process server. Little v. Miller, 220 Md. 309, 315, and cases cited. Chief Judge Bond for the Court in Parker v. Berryman, 174 Md. 356, 359, adopted the language of Windwart v. Allen, 13 Md. 196, 200: “‘Intendments will be made in support of the acts of ministerial officers, where they appear by the return of process to have discharged their duty, and the onus probandi rests on the party impeaching such acts.‘” Sarlouis v. Firemen‘s Ins. Co., 45 Md. 241, 244, held that the affirmative testimony of the official process server acting in the regular routine of duty without a motive to misrepresent must be preferred to the negative evidence of one claiming not to have been served “from public policy as well as upon the rules of probability.” Judge Urner, for the Court, put it in this wise, in Weisman v. Davitz, 174 Md. 447, 451, after first restating the rules just referred to: “If the defendant‘s denial is not supported by corroborative testimony or circumstances, or the evidence offered by him is refuted by opposing proof, the attempted impeachment of the official return must fail.”
In the case before us, Ammons, who for the purpose of serving the appellee and the attendant consequences, had the status of a sheriff, testified clearly and explicitly under oath that he had inquired of people in Walker‘s former neighborhood as to his whereabouts and had found out about the parking lot at which
Ammons says the reason he explained what the declaration said and claimed with unusual care was because Walker gave the impression that he thought he was free of any liability for the accident because he had been acquitted in Traffic Court. He said to Ammons: “I thought that thing was all over. Are they still kicking it around?” Ammons said Walker telephoned his insurance agent while he was there and reported he had been told he would have to call back later to talk to the man he wanted. Ammons left the papers with Walker.
Walker corroborated Ammons in a number of respects. He is literate, having gone through the fifth grade at school and through an additional four “levels” in the Army. He was at his desk in the parking lot office, working on records of oil and gasoline when Ammons walked in. His insurance company adjuster noted in his records that Walker was of average intelligence and was worried about the accident. Ammons told Walker he had been looking all over the place for him, that he had come to see him in the place of the sheriff of Baltimore to serve him with some papers about his accident. Walker then said: “And he ripped the envelope open and spread them out and ruffled them open so I could take a look * * *.” Walker said he glanced at the papers but never noticed what they were. (It is difficult to believe that even a glance at the heavy black
We think Walker‘s testimony amounts to no more than an unsupported, uncorroborated denial of effective service which cannot stand in the face of the sworn return of Ammons, pursuant to
If Walker is right in his recollection that Ammons told him he could turn the papers over to his insurance company “if he wanted to,” this would not invalidate the service and would not be enough to justify Walker in disregarding the papers when they were shown to him, or later when he could have looked at them at his leisure. What Ammons did was no masking of service, even on Walker‘s version of what occurred.2 The situ-
“It would seem highly probable that the constable, having gone so far as to visit the house for the purpose, would not then fail to carry out the single piece of business which had brought him. * * * Having been served, and the proceedings thus started forward, her failure of comprehension, and her resting upon a protest to the constable, could not, in any forum, be considered as a ground of attack on the judgment.”
Walker‘s lawyers, who also represent the insurance company, urge that his testimony amounted to more than a mere denial of effective service because of the testimony they adduced in an effort to show a plot on the part of appellant‘s lawyers to build a claim they knew to be completely worthless into a $10,000 collectible judgment by serving Walker in such a way that he would not know he was being served, and thereafter concealing the suit and the service until the time for appeal from the judgment by default had passed. There are fatal flaws in the hypothesis that such a plot existed. It requires a finding that only absolute necessity would compel, a finding that three members of the bar-appellant‘s two lawyers and Ammons-and a law student all conspired to engage in and did engage in unethical, unworthy, dishonest and criminal practices and that all thereafter committed perjury to insure collection of the fruits
In the file of appellant‘s lawyers was a notation that several weeks after suit was filed, that is about December 1, 1962, the adjuster for the insurance company covering Walker had been told over the telephone that suit had been filed. The adjuster denied hearing of the suit but testified that his file on the Walker case had been entirely inactive from December 1962 to April 1963 because he had been ill, the employee to whom it had been given had left and a new employee, an alcoholic, lasted only two weeks, and he was unable to obtain a new adjuster for some time. In addition to this testimony of notice to the insurer of suit, there is Walker‘s testimony that he told the insurance agent of the papers served on him soon after he was served, and within two weeks talked to the manager of the agency about them.
That the appellee‘s characterization of the appellant‘s claim as completely worthless is an overstatement would seem to follow from the adjuster‘s testimony that the insurance company took him to task in November 1962 for being dilatory in closing the case and the testimony of the man employed by the adjuster in March or April of 1963, who said he was given the
Undoubtedly the appellant‘s lawyers, after they had taken judgment and learned of the S. R. 22 insurance, cheerfully and willingly accepted the blessings fate had bestowed upon them and did not want to lose them by having the insurer know of the judgment, and so did not tell the adjuster of its existence, but this does not show an earlier plot to mislead Walker and the insurance company and bring about the result which, in fact, occurred.
We think Judge Carter was clearly wrong in his findings of fact and that he erred in his application of the law. Under the facts and the authorities cited, Walker was validly served and, this being so, the insurance company has no basis in law for relief because it was not made aware of the judgment. National Indemnity Co. v. Simmons, 230 Md. 234, and Barrella v. Stewart, 228 Md. 378.
Order appealed from, striking the judgment of the appellant against appellee, reversed, with costs, and the judgment reinstated.
HORNEY, J., filed the following dissenting opinion.
The facts and circumstances of this case do not compel a reversal. To me, the evidence was such as to warrant the lower court finding, as it did, that the judgment was void for want of valid service of process on the defendant-appellee. On the one hand, the testimony of the defendant was to the effect that the private process server, on leaving the suit papers with him, told him that they were some sort of record of his accident and that he could turn them over to his insurance company if he wanted to. The defendant further testified that he was never informed, and did not understand, that he had been sued or was a defendant in a law suit. Because he had already been exonerated of having caused the accident, the defendant also stated that what was said by the process server, had the effect of lulling him into a state of complacency for the time being.
On the other hand, the process server testified at some length that he carefully checked the fact that the defendant was the person being sued, that he explained each of the papers, con-
The rule in Maryland, as the majority points out by citing a number of cases, including Weisman v. Davitz, 174 Md. 447, 199 Atl. 476 (1938), and Little v. Miller, 220 Md. 309, 153 A. 2d 271 (1959), is that the return of service of process is presumed to be true and accurate and a mere denial by a defendant, unsupported by corroborative evidence or circumstances, is not enough to impeach the return of service. But that was not, as the record shows, the situation here. Not only was there testimony to the effect that the defendant had been misinformed and led to believe that the papers the process server left with him were unimportant, which, in my opinion, constituted something more, under the circumstances of this case, than a mere denial of service of process, but there was strong corroboration of the defendant‘s testimony in the fact that the plaintiff or her attorney had reason to doubt the propriety of the service of process or else it would not have been expedient for her agent and attorney to subsequently visit the defendant, not once but twice, to obtain statements from him that he had been served with suit papers.
While the delivery of copies of the process and original pleading, see
The question here is really one of credibility of witnesses and the trial judge chose to believe the defendant. Regardless of any misapplication of the law, it is my opinion that the lower court was not clearly wrong in finding that the presumption in favor of the correctness of the return had been overcome. The order appealed from should be affirmed.