Appeal from the Superior Court of Baltimore City; Foster, J.
Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ. Henderson, J., delivered the opinion of the Court.
The question presented in this case is whether the appellant was excused, from failing to file notice of his claim against the Unsatisfied Claim and Judgment Fund within ninety days from the date of the accident in which he was injured, by reason of physical incapacity.
On November 23, 1960, the appellant, while a passenger in a car owned and operated by one Jack Wright, was seriously injured and on October 11, 1962, he recovered a default judgment against Wright for $18,000. On November 13, 1962, he filed a petition for payment out of the Fund, alleging that Wright had no insurance and assets from which the judgment could be collected. The Fund Board denied liability on the ground that notice had not been given to it within 90 days following the accident. After hearing, the court denied the petition.
Code (1957), Art. 66 1/2, sec. 159 requires a qualified judgment creditor who seeks payment from the Fund to show that
he has met the requirements of sec. 154. The latter section requires that the claimant "shall, within 90 days after the accident, as a condition precedent to the right thereafter to apply for the payment from the fund, give notice to the Board, as prescribed by it, of his intention to make a claim thereon for such damages, if otherwise uncollectible, and shall otherwise comply with the provisions of this section; provided, any such qualified person may, in lieu of giving said notice within said time, make proof to the court on the hearing of the application for the payment of a judgment * * * that he was physically incapable of giving said notice within said period and that he gave said notice within 30 days after he became physically capable to do so * * *."*fn1
It is conceded that the appellant gave notice, through counsel, on February 22, 1961, on the ninety-first day after the accident. The case turns, then, on whether the appellant proved that he was physically incapable of giving the notice during the 90 day period and that he gave the notice within 30 days after he became capable. This would seem to present a question of fact, and we think there was evidence to support the finding of the trial court on both issues.
On the next day after the accident the appellant, although he had sustained fractures of both legs and of two ribs, in addition to lacerations of the face, was capable enough to ask his sister to obtain forms for insurance benefits from his employer. Within forty-eight hours after the accident he signed a claim form. He signed another claim form within two weeks. On the twenty-fifth day he was discharged from the hospital and went to his sister's home. There he read books and magazines, saw visitors, watched television and moved about in a wheel chair. At no time was he unable to communicate, except possibly at the time of his first admission to the hospital and at the time of a subsequent operation on December 6, 1960. The record makes it clear, we think, that the only reason the appellant did not give notice to the Fund during the 90 day period was that he did not know such a fund existed. When
he learned of its existence through a friend he immediately consulted a lawyer, who filed notice the same day. Unfortunately, the time had run. There was no evidence of inability to give notice during the crucial period from January 22, 1961, until the notice was given.
We think the words "physically incapable of giving notice" clearly import a greater incapacity than mere inability to give notice in person or to give notice only with difficulty. The mere fact that a patient is hospitalized, or confined to bed and a wheel chair, would not necessarily prevent communication. In 2 Merrill on Notice (1952), sec. 832, the author states: "* * * confinement to bed or to home should not be considered as conclusively excusing a failure to notify * * *. The test should be whether the notifier is incapacitated from attending to his affairs in general." (footnotes omitted) See also Grys v. Motor Vehicle Accident Indem. Corp., 220 N. Y. S. 2d 653 (N. Y. App. Div.).
In Hart v. Com. of Motor Vehicles, 226 Md. 584, the trial court held that physical incapacity to give notice was not established by the fact that the claimant had been hospitalized with a broken leg and confined to her home for more than the 90 day period. There, as here, failure to give notice was attributable to a lack of knowledge rather than a lack of ability. We dismissed the appeal because the statute at that time did not provide for an appeal.*fn2 At the same time we observed (p. 588) that "* * * even if we had jurisdiction to consider this case on the merits, it is not likely ...