Myers v. Montgomery Ward & Co., 210

• Citation: 253 Md. 282,252 A.2d 855
• Decision Date: 01 May 1969
• Docket Number: No. 210,210
• Parties: , 6 UCC Rep.Serv. 493 Harold MYERS et ux. v. MONTGOMERY WARD & CO., Inc., et al.
• Court: Court of Appeals of Maryland

Page 282

253 Md. 282

252 A.2d 855, 6 UCC Rep.Serv. 493

Harold MYERS et ux. v. MONTGOMERY WARD & CO., Inc., et al.

No. 210.

Court of Appeals of Maryland.

May 1, 1969.

[252 A.2d 857] Norman H. Heller, Wheaton, for appellants.

Albert T. Blackwell, Jr., Mt. Rainier, for appellees (Couch, Blackwell & Miller, Mt. Rainier, on the brief).

Before HAMMOND, C. J., and MARBURY, BARNES, McWILLIAMS, FINAN and SINGLEY, JJ.

SINGLEY, Judge.

In May 1966, Mr. Myers, a plaintiff below and an appellant here, purchased a rotary power mower from the defendant-appellee, Montgomery Ward & Co., Inc. (Ward), which had been manufactured by the other defendant-appellee, MTD Products, Inc. (MTD). About a year later, while cutting the grass on a slope of his lawn, Mr. Myers slipped and fell; his foot found its way under the mower; and he was severely injured by the whirling blade.

Myers and his wife sued Ward and MTD in the Circuit Court for Prince George's County. The declaration contained four counts directed against Ward and an identical set of counts directed against MTD:

'COUNT ONE

(Negligence)

'Plaintiff, Harold Myers, through counsel, sues the defendant Montgomery Ward and Company, Inc., for that, on or about May 8, 1966, defendant, through its agents, servants or employees, sold to the plaintiff, as a product of Montgomery Ward and Company, Inc., a negligently carelessly and dangerously designed gasoline powered rotary blade lawnmower, known as the 'Garden Mark Lawnmower', and on, to wit, May 10, 1967, while plaintiff was using said lawnmower to cut the grass in his yard, the very use for which it was intended, as the result of the negligent and dangerous design of said lawnmower plaintiff received serious, painful, permanent disabling injuries to his left foot.

'Prior to offering the aforesaid lawnmower for sale to plaintiff, defendant owed a duty to plaintiff to ascertain that it was designed and equipped so it could be used safely for its intended purpose, a duty to provide a control on the handle known as a 'dead-man' control which would, when released, stop the operation of the rotary blade under the housing, a duty to provide an adjustable plate to the housing of the lawnmower so that high grass could be cut without raising the housing a duty to provide a vertical adjustment on the cutting blade so that it could be raised or lowered without increasing the height of the protective housing and so as to keep the protective guard at a constant level regardless of the height of the blade, and a duty to warn that when wheels are lowered that there was more exposure between the housing and the ground.

'In spite of the duties owed by defendant to plaintiff, defendant failed to provide adequate guards and take proper precautions in the design of its 'Garden Mark Lawnmower', and failed to warn plaintiff that when the wheels were lowered that the housing would be raised from the ground leaving more exposure for contact.

'On May 10, 1967, plaintiff, preparatory to cutting the high grass in his yard, made the adjustments to the wheels of the 'Garden Mark Lawnmower' so that the cutting edge of the blade was at the next to highest point of adjustment which, at the same time raised the housing of the lawnmower so that the lower edge of the housing was between three and three and one-fourth inches from the ground, which distance was sufficient to permit a foot and shoe under the housing. Plaintiff was mowing a slope from side to side and turning around at the end of one strip in order to return in the opposite direction, slipped on the grass which had been newly mowed, released the lawnmower in order to break his fall and his left foot entered under the housing of the lawnmower when the rotating blade amputated all the toes, fractured all the metatarsal bones and masserated the skin, muscles, nerves, and blood vessels in the terminal two inches of his left foot.

'COUNT TWO

(Implied Warranty)

'Plaintiff sues the defendant, incorporating by reference all the allegationscontained in Count One of this Declaration and further alleges that the defendant corporation is, among other items, in the business of selling rotary bladed power lawnmowers and that it had been engaged in such sales for a considerable period of time prior to plaintiff's purchase from the defendant. That he relied upon the expertise, skill and judgment of the defendant's agents, servants and employees to furnish a safely designed lawnmower, fit for the purpose for which it was intended.

'In spite of the defendant's duty to furnish a safely designed lawnmower, defendant supplied a lawnmower which was dangerously designed and unfit for the purpose for which it was intended.

'COUNT THREE

(Strict Liability)

'Plaintiff sues the defendant, incorporating by reference all the allegations contained in Count One of this Declaration and further alleges that on or about May 8, 1966, defendant sold to the plaintiff a 'Garden Mark Lawnmower' in a defective condition unreasonable to plaintiff as the user of said lawnmower; that defendant was and is engaged in the business of selling lawnmowers, and that the lawnmower purchased by plaintiff from the defendant reached plaintiff without change in the condition in which it was sold.

'As the result of the unreasonably dangerous condition of the lawnmower, while using it to cut the grass in his yard, plaintiff received serious, painful, permanent and disabling injuries to his left foot and damages as set out in Count One herein, for all of which the defendant is strictly liable.

COUNT FOUR

(Loss of Consortium)

'Plaintiff, Harold Myers and Plaintiff, Bernice Myers, sue the defendant Montgomery Ward and Company, Inc., incorporating by reference all the allegations contained in Counts One, Two and Three of this Declaration and further allege that they were at the time of both the purchase of said lawnmower and the time of the injuries received by Harold Myers and are now, husband and wife, and that the defendant proximately caused and continues to cause the plaintiffs jointly to suffer loss of consortium to the detriment of their marital relationship without any action on their part contributing thereto.'

Ward and MTD concede that the facts alleged in the last paragraph above quoted of Count One and incorporated by reference in the other Counts were well pleaded. For the purposes of a demurrer, the truth of these facts must be admitted.

Both Ward and MTD demurred:

'Come now the defendants, Montgomery Ward and Company, Incorporated and MTD Products, Incorporated * * * and for a demur (sic) to the Declaration filed herein, and to each and every Count thereof state as follows:

'1. The Declaration alleges in Count Three and Count Seven, a set of facts, which under the Maryland Law does not set forth a cause of action, inasmuch as Maryland has not accepted the 'strict liability' theory of liability without fault.

'2. For other reasons to be assigned at the time of the hearing on this Demurrer.'

Appended to the demurrer was:

'Points and authorities: ¹

Telak v. Maszczenski, (248 Md. 476) 237 A.2d 434

Babylon v. Scruton, (215 Md. 299) 138 A.2d 375

Walker v. Vail, (203 Md. 321) 101 A.2d 201

Otis Elevator Co. v. Embert, (198 Md. 585) 84 A.2d 876.'

The demurrer was sustained as to both defendants on all counts without leave to amend, and Mr. and Mrs. Myers have appealed from the order sustaining it, assigning four reasons why it should have been overruled:

i. The demurrer failed to comply with Maryland Rule 345 b, and the lower court erred in not overruling it as to Counts other than Three and Seven;

ii. The declaration alleged facts which if proved would have been sufficient to take the case to the jury on the question of negligence in the design of the mower;

iii. The declaration alleged facts which if proved would have been sufficient to take the case to the jury on the question of breach of implied warranty;

iv. The declaration alleged facts which if proved would have supported a verdict against the seller and manufacturer of the mower on grounds of strict liability.

We shall consider Myers' contentions in order.

i

Did the demurrer comply with Maryland Rule 345 b?

The demurrer which Myers challenges can scarcely be regarded as a model of draftsmanship. Rule 345 b provides: 'A demurrer shall, in addition to complying with Rule 301 (Form and Contents) in so far as the requirements thereof are applicable, state in detail the question of law or insufficiency of substance upon which the demurrer is founded.' While the demurrer purported to reach 'each and every Count' of the declaration, it particularized but one question of law and cited Maryland cases in an effort to support only this single point. It was valid, therefore, only to the extent of its specificity. Baltimore County v. Glendale Corp., 219 Md. 465, 150 A.2d 433 (1959).

The court below, in response to a motion made by Myers, filed a 'statement of the grounds for its decision' as required by Rule 18 c. It is quite apparent, although the court did not so state in its memorandum, that the demurrer was treated as if it had been a motion for summary judgment filed under Rule 610, since the court addressed itself to each of the alternative legal theories advanced by the declaration. A motion for summary judgment can be made by a party at any time in a proceeding, Rule 610 a 1; Cox v. Sandler's, Inc., 209 Md. 193, 120 A.2d 674 (1956), when it appears that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. A court may enter summary judgment of its own motion, Rule 610 d 1; Hunt v. Montgomery County, 248 Md. 403, 237 A.2d 35 (1968), and the granting of summary judgment on a motion which is defective in form is not reversible error if there is no genuine dispute as to any material fact, Fletcher v. Flournoy, 198 Md. 53, 81 A.2d 232 (1951).

Although the demurrer, as drawn, reached only the question of strict...