Mattos, Inc. v. Hash

• Citation: 368 A.2d 993,279 Md. 371
• Decision Date: 08 February 1977
• Docket Number: No. 68,68
• Parties: , 21 UCC Rep.Serv. 473 MATTOS, INC. v. Chester L. HASH et al.
• Court: Court of Appeals of Maryland

Page 371

279 Md. 371

368 A.2d 993, 21 UCC Rep.Serv. 473

MATTOS, INC. v. Chester L. HASH et al.

No. 68.

Court of Appeals of Maryland.

Feb. 8, 1977.

J. Joseph Barse, Washington, D. C. (Hal Thurston, Washington, D. C., on the brief), for appellant.

Kevin J. McCarthy, Upper Marlboro (Shipley, O'Malley & Miles, Upper Marlboro, on the brief), for appellees.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

LEVINE, Judge.

This appeal arises from a claim for personal injuries sustained by appellee while employed as an automobile body repairman. In an action for negligence and breach of warranty brought by him in the Circuit Court for Prince George's County, a jury awarded damages totalling $227,574 to appellee, his wife, and Liberty Mutual Insurance Company, which had made workmen's compensation payments to appellee. Appellant, against whom the judgment had been rendered, noted an appeal to the Court of Special Appeals, but we granted certiorari prior to consideration of the case by that court. The thrust of the appeal centers on appellant's claim that the trial judge (Couch, J.) erred in refusing to grant its motion for directed verdict. Since we think the case was properly submitted to the jury, we shall affirm.

The accident in which appellee sustained his injuries occurred on April 8, 1974, in the body repair shop of Sheehy Ford, where appellee was attempting to realign the body of a Mustang automobile which had been badly damaged. To accomplish the realignment, he was using a large machine, loosely resembling a lift found in most service stations and repair garages, bearing in this instance the tradename 'Align Rite.' In the operation of this machine, the automobile is placed on appropriately secured tracks, and then clamps, which are affixed to the part of the frame or sheet metal requiring realignment, are connected by bars to vertical stanchions which form part of the machine. The object, in rudimentary terms, is to straighten the body by manually applying pressure with foot-operated pedals so as to pull the damaged areas into correct alignment. This particular 'Align Rite' machine was purchased by Sheehy Ford from appellant some five years prior to the accident which injured appellee.

Whether the clamps in a given instance are to be attached to sheet metal or to a frame depends on whether the automobile body is one built on a frame or whether, as in the case of the Mustang, it is 'unitized.' Heavy metal girders make up the conventional frame to which separate pieces of sheet metal are bolted. The newer automobiles, particularly those which are small, are frequently built with a 'unitized' body, consisting of sheet metal which is welded together; the strength of the body derives from the sheets of metal.

Prior to purchase of the clamp in question, a recurring problem had been encountered in aligning a 'unitized' body. Theoretically, the clamps were expected to retain their grip on the sheet metal even under the extreme pressure of the aligning machine, but in actual practice this had not always been the because the clamps were designed to be attached only to the edge of the sheet metal. Approximately one year before the accident, a salesman employed by appellant visited Sheehy Ford and showed appellee a newly designed set of clamps which could be attached to any part of the sheet metal surface. These clamps were designed therefore to afford improved gripping ability. The salesman informed appellee, according to the latter, that the new clamps had been built by the same company, Roger Manufacturing, which had built the clamps that had originally accompanied the Align Rite machine, and further indicated to appellee that the new clamps could be used with that machine. Impressed with both what he had seen and had learned from the salesman, appellee requested that his employer purchase the new clamps. This was done, and appellee, as did other employees at Sheehy Ford, proceeded to use the clamps with satisfactory results in the one year prior to the accident.

On the occasion of his accident, appellee attached one of the clamps purchased from appellant to the sheet metal of the Mustang 'on the right front fender skirt, approximately six inches above the main structure of the chassis and . . . just about six inches forward of what they call the spring guard . . ..' The clamp was attached to a bar, which, in turn, was secured by an 'S' hook to the upright stanchion of the machine. He then began to apply pressure by stepping on the control pedal which was located to the front of the automobile. The machine had a maximum pulling capability of 10 tons, but there were no gauges or other instruments which would permit the mechanic to determine how much force was being exerted at any given time.

After applying what he regarded as the 'normal amount of pressure' necessary to straighten this particular body damage, appellee looked beneath the vehicle to make certain that the clamp had not lost its grip and that 'none of the side skirt had pulled away from the cowl.' He then went forward with the intention of inspecting the alignment gauges. As he was passing the area then being straightened by the machine, he heard a noise and instantly found himself lying on the floor. The force of the machine, it was later discovered, had ripped the clamp apart, and the bar connected to the clamp by a hook had torn free and struck appellee in the head. Never before in his 28-year career had appellee encountered a broken clamp. Tests conducted after the accident by a metallurgist, who later testified as an expert witness for appellee, disclosed that two clamps identical to the one used by appellee were capable of withstanding pressures of 15,100 pounds and 15,900 pounds, respectively, as opposed to the 20,000 pound, or 10-ton, capacity of the machine. The clamp material, he found, was not defective; the clamp was simply not large enough to resist the force apparently created by the machine at the time of the accident.

At the conclusion of appellee's case, which sounded in negligence and in breach of warranty, the court denied, appellant's motion for directed verdict and, after appellant declined to present any evidence, submitted the case to the jury on special issues. The jury found appellant guilty of negligence and breach of warranty. It further found that appellant's conduct was a proximate cause of the injury, that appellee was free of contributory negligence and that he had not assumed the risk.

On appeal, appellant advanced three contentions:

(1) That appellee, although a third party beneficiary of the transaction in which appellant sold the clamps to appellee's employer, was nevertheless required to give notice of his injuries and the breach of warranty to appellant.

(2) That appellee presented insufficient evidence of either negligence or breach of warranty to justify submission of the case to the jury.

(3) That appellee was guilty of contributory negligence as a matter of law.

Since we have concluded that there was sufficient evidence to warrant submission of the breach of warranty claim to the jury, we need not consider the negligence question.

(1)

As a threshold proposition, we turn first to the question of whether appellee, though not the purchaser of the clamps, was none-theless not the purchaser of the clamps, was none-theless Code (the U.C.C.) to give notice of the breach of warranty as a precondition to obtaining relief. Appellant observes, in this connection, that it was not informed of the breach until served with the suit papers some 11 months after appellee sustained his injuries. The statutory requirement which appellant seeks to invoke here is found in § 2-607(3)(a) of the U.C.C., codified in this state as Maryland Code (1975), § 2-607(3)(a) of the Commercial Law Article. It provides:

'(3) Where a tender has been accepted

'(a) The buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy (.)' (Emphasis added).

Appellant argues that if appellee, as a non-purchaser, is to come within the enlarged class of third party beneficiaries entitled to warranty protection under the 1969 amendments to § 2-318 of the U.C.C., so also should he be bound by the notice requirement of § 2-607, contained within the same title of the U.C.C.

Prior to argument in this case, but shortly after appellant's brief was filed, we considered the very point raised here in Frericks v. General Motors Corp., 278 Md. 304, 309-16, 363 A.2d 460 (1976), which we think is controlling. There, relief was sought for breach of warranty and negligence by an automobile passenger, who was a non-purchaser, for injuries sustained because of a design defect in the automobile. There also, the notice requirement of § 2-607 was interposed as a defense in the face of the plaintiff's failure to give notice of the breach of warranty to the seller of the automobile, as in this case, prior to filing suit. We held in Frericks that the third party beneficiary, because he was a non-purchaser, was not required by § 2-607 to notify the seller of a breach of warranty, and was therefore not precluded from pursuing his remedy under the U.C.C. In so holding, we relied in part on the § 2-103(1) (a) definition of a 'buyer' as a 'person who buys or contracts to buy goods.'

A purpose of the notice requirement, we recognized in Frericks, was to inform the seller of a defect in the product, thus enabling him to correct the defect, if possible, and to minimize any damages. Judge Eldridge for the Court, aptly responded with the observation that '(i)n a case involving a personal injury to a non-buyer, the requirement (of § 2-607) would seem to serve no purpose, as it would be impossible to correct the defect or minimize damages after the injury has already occurred.' Frericks v. General Motors Corp., 278 Md. at 313, 363 A.2d at 465....