Virginia Dare Stores, Inc. v. Schuman

• Decision Date: 26 October 1938
• Docket Number: 3.
• Citation: 1 A.2d 897,175 Md. 287
• Parties: VIRGINIA DARE STORES, Inc., v. SCHUMAN.
• Court: Maryland Court of Appeals

1 A.2d 897

175 Md. 287

VIRGINIA DARE STORES, Inc., v. SCHUMAN.

No. 3.

Court of Appeals of Maryland

October 26, 1938

Appeal from Superior Court of Baltimore City; Joseph N. Ulman Judge.

Action by Charles Schuman, to his own use and to the use of the State Accident Fund, against Virginia Dare Stores Incorporated, a body corporate, to recover sums paid to first-named plaintiff as compensation and for injuries resulting from the alleged negligence of the defendant. From an adverse judgment, defendant appeals.

Affirmed.

Walter V. Harrison, of Baltimore (Paul L. Cordish, of Baltimore, on the brief), for appellant.

W Hamilton Whiteford and Omar D. Crothers, Jr., both of Baltimore (Albert Levin, of Baltimore, on the brief), for appellees.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

JOHNSON Judge.

On July 1, 1936, and for sometime prior thereto, Charles Schuman was employed by Queen City Window Cleaning Company. Virginia Dare Stores, Inc., owner of a store at 15 West Lexington Street, Baltimore, Maryland, had previously engaged York Ice Machine Company to install an air conditioning system in its store. As a result of the installation, the east and south walls of the store were left spotted and dirty, whereupon York Ice Machine Company employed Queen City Window Cleaning Company to clean them. On the morning of July 1, 1936, Schuman and one Parr, a co-employee, were sent by the manager of their employer to the Virginia Dare Store to clean the walls in question under direction of Pillar, Manager of the last named store. Their equipment consisted of buckets, sponges, cleaning powder, a stepladder and a board, eighteen feet long, ten inches wide and two inches thick. After having been shown by Pillar the walls which their employer had directed them to clean, they proceeded with the work. During its progress Schuman sustained personal injuries, allegedly as a result of the negligent conduct of the manager of Virginia Dare Stores, Inc. Schuman's employer carried Workmen Compensation Insurance in the State Accident Fund, and after collecting from that agency compensation for his injuries, Schuman and the insurer brought suit under provisions of Section 58, Article 101 of the Code and secured a judgment from which the present appeal is taken.

We will first make some reference to the pleadings. To the plaintiff's declaration, as amplified by his bill of particulars filed in response to a demand of defendant, a demurrer was filed and overruled. It is alleged in the narr that Schuman on July 1, 1936, at the solicitation of the defendant, its agents and servants, was in the store of the latter in Baltimore, Maryland, for the purposes of washing walls therein, and while so engaged in those duties stood upon the molding of a dress case in order to reach the walls he was to wash after he had first been assured by the defendant's agents and servants, and particularly its manager, that the said molding and dress case were safe to stand upon, but that the dress case and molding attached thereto, contrary to the assurance and warranties of the defendant, were unsound and unsafe for such purpose, all of which the defendant, its agents and servants, knew or should have known before directing and requesting the plaintiff to stand upon the dress case and molding to wash said walls, and that while standing on said molding of the dress case engaged in washing the walls of the defendant's store the molding broke from the case, threw the plaintiff to the floor, and he thereby sustained serious, permanent and painful injuries, solely as the result of the defendant's negligence and without any negligence on his part contributing thereto. It is further alleged that plaintiff was at the time employed by Queen City Window Cleaning Company, who was insured under the provisions of the Workmen's Compensation Act in the State Accident Fund; that Schuman filed a claim with his employer's insurer for compensation based upon injuries he received arising out of and in the course of his employment and the Commission ordered the insurer to pay unto him certain Workmen's compensation on account of said accident and injuries, and to pay his medical expenses arising out of said accident; that the equitable plaintiff joined in the action against the defendant under the provisions of the Workmen's Compensation statute, Code Pub.Gen.Laws 1924, art. 101, § 1 et seq., and that liability of the State Accident Fund to pay the compensation award was due solely to the fact that Schuman's accident and injuries arose out of and in the course of his employment; that said injuries were due solely to the negligence and want of care on the part of defendant, its servants and agents and legal liability was imposed upon the defendant to pay damages in respect thereto, and under the Workmen's Compensation Act, the State Accident Fund, one of the plaintiffs, was authorized to enforce the liability of the defendant to Schuman for its use to the extent of compensation awarded or to be awarded him and his medical expenses incident thereto, and for the use and benefit of Schuman for the excess of damages sustained over and above the amount of compensation awarded or to be awarded.

These allegations are sufficient to place Schuman at the time of his injuries upon the premises of the defendant either as the employee of Queen City Window Cleaning Company prosecuting the work his employer sent him to do under direction of Pillar, the defendant's manager, or doing work upon the premises under the direction of the defendant's manager which was not contemplated by his employer, or that he was there as appellant's invitee, but it is clear that, regardless of whether the proof places him in the first, second or third of these classifications, appellant owed him some duty. Long Co. v. State Accident Fund, 156 Md. 639, 144 A. 775; Consolidated Gas, Electric Light & Power Co. v. Chambers, 112 Md. 324, 75 A. 241, 26 L.R.A., N.S., 509; Riganis v. Mottu, 156 Md. 340, 144 A. 355; Hochschild, Kohn & Co. v. Murdoch, 154 Md. 575, 141 A. 905; State to Use of Lorenz, v. Machen, 164 Md. 579, 165 A. 695; Pennsylvania Steel Co. v. Nace, 113 Md. 460, 77 A. 1121, 45 L.R.A.,N.S., 281; Atkins v. Madry, 174 N.C. 187, 93 S.E. 744; Labatt's Master & Servant (2 Ed.), Sec. 1372.

It appears from the declaration heretofore referred to that this action is founded upon negligence in misrepresentation. No Maryland case has been found directly upon the subject, but the weight of authority in other jurisdictions seems to be that such action is not necessarily confined to injuries arising from contractual relations; that the action lies for negligent words, recovery being permitted where one relies on statements of another, negligently volunteering an erroneous opinion intending that it be acted upon and knowing that loss or injury are likely to follow if it is acted upon. Restatement of the Law of Torts, Sec. 310; Tentative Draft No. 2 of the Restatement of the Law of Torts, Sec. 186A; 45 C.J. 'Negligence,' Sec. 125J; International Products Co. v. Erie R. R. Co., 244 N.Y. 331, 155 N.E. 662, 56 A.L.R. 1377; Pollock on Torts (12 Ed.), Sec. 565; Cunningham v. C. R. Pease Co., 74 N.H. 435, 69 A. 120, 20 L.R.A.,N.S., 236, 124 Am.St.Rep. 979; 35 Yale Law Journal, 767; 28 Columbia Law Review, 216; 81 University of Pa. Law Review, 435; 24 Ill. Law Review, 749.

We, therefore, conclude that the demurrer to the declaration as supplemented by the bill of particulars filed in response to defendant's demand was properly overruled. After the demurrer had been overruled, general issue pleas were then filed by defendant, whereupon plaintiff made demand for the particulars of such pleas and reasons therefor and requested that the defendant be required to set forth factually his defense. Defendant replied by stating for the particulars of its defense that the cause of action never existed except in the imagination of the plaintiff or his counsel. On motion of the plaintiff that the particulars of the defendant's general issue pleas be not received because abusive, impertinent and a reflection upon plaintiff and his counsel they were stricken from the record. This action was manifestly correct. The object of requiring the particulars of the pleas was to give plaintiff more factual information regarding the defendant's contention, and this the alleged particulars of the defense did not do.

That appellee was seriously, painfully and permanently injured is not disputed, but appellant maintains that no primary negligence on the part of the defendant has been shown further that by the uncontradicted evidence in the case, the plaintiff was guilty of contributory negligence as a matter of law. Defendant's prayer A to G, inclusive, sought instructed verdicts upon those theories, but were refused by the trial court, and it is insisted that error was committed in their rejection. If they believed the evidence offered on behalf of the plaintiff, the jurors could have found that Schuman was employed by Queen City Window Cleaning Company at the time of the accident, that the company last named was engaged by York Ice Machine Company to clean the east and south walls of appellant's store, and Schuman and Parr, his co-employee, on the date of Schuman's injuries were sent to appellant's premises by the manager of the Queen City Window Cleaning Company to clean the north and south walls under the direction of Pillar, appellant's manager; that resting against the east wall of the first floor dress shop was a dress case extending from the south wall northerly along the east wall to a point near the north wall, the space between the north wall and the end of the dress case being taken up by a mirror which...