Blanco v. J. C. Penney Co.

• Decision Date: 17 December 1968
• Docket Number: No. 420,420
• Citation: 251 Md. 707,248 A.2d 645
• Parties: Rose BLANCO, et al. v. J. C. PENNEY COMPANY.
• Court: Maryland Court of Appeals

Page 707

251 Md. 707

248 A.2d 645

Rose BLANCO, et al. v. J. C. PENNEY COMPANY.

No. 420.

Court of Appeals of Maryland.

Dec. 17, 1968.

Samuel Intrater, Washington, D. C., (Albert Brick, Washington, D. C., on the brief) for appellant.

Francis J. Ford, Rockville, for appellee.

Before HAMMOND, C. J., BARNES, McWILLIAMS, FINAN and SMITH, JJ.

McWILLIAMS, Judge.

Mrs. Blanco (appellant) tried to walk through a plate glass panel that 'looked (to her) like an open door.' The next thing she knew someone had 'propped (her) up on a chair' and compresses were being applied to her face. When her suit against appellee (Penney) came on for trial in the Circuit Court for Montgomery County, the trial judge, Shearin, J., at the conclusion of her case, directed a verdict in favor of Penney.

In our discussion we shall keep in mind the familiar rule that the evidence, together with all proper and legitimate inferences to be drawn therefrom, must be considered in a light most favorable to appellant. Rodriguez v. Lynch, 246 Md. 623, 229 A.2d 83 (1967).

Appellant entered Penney's store in Silver Spring, for the first time, in the late afternoon of 5 February 1966. The weather, for which she was dressed, was clear and cold. At the entrance there are 3 pairs of swinging doors made of glass set in white metal frames. On either side of this battery of doors there is a plate glass panel the dimensions of each of which are the same as one of the swinging doors. On the day in question the left (outbound) panel was entirely clear of any marking or material which might draw attention to its presence. Appellant browsed about the store for a half hour or so before she retraced her steps to the entrance. Looking straight ahead she walked into the panel, shattering the glass and sustaining the injuries for which she seeks to recover.

I.

Appellant offered to prove by the testimony of appellant's husband and by photographs that about two weeks after her injury Penney replaced the shattered glass and pasted thereon decals giving the store hours and other information, and that the panel on the other end of the three double doors had been similarly treated. The purpose of this proffer, as stated by appellant's counsel, was not to establish an admission of liability on the part of Penney but to introduce evidence of the obvious effect of the decals as reflecting upon the question whether Penney had exercised proper care and caution to avoid causing injuries such as those sustained by the appellant. In excluding this evidence the court relied upon Long v. Joestlein, 193 Md. 211, 66 A.2d 407 (1949) and State for use of Parr v. Prince George's County, 207 Md. 91, 113 A.2d 397 (1955), but, in our judgment, neither case provides any support for such a ruling. In State for use of Parr v. Prince George's County we said:

'During Mr. Parr's testimony the trial judge refused to permit him to answer certain questions concerning other types of latches which were available for use on emergency doors in school buses. The appellants assign this as error. From the manner in which these questions were framed, we are of the opinion that the objections were properly sustained. If the objections had been overruled, the witness would have been allowed to testify as to locking devices available at the time of the trial which was twenty months after the accident. The questions did not confine his testimony to locks available at the time of the accident. That more efficient locking devices were available at the time of the trial could not affect the responsibility of the Board of Education at the time of the accident. Ziehm v. United Electric Light & Power Co., 104 Md. 48, 61, 64 A. 61. In Long v. Joestlein, 193 Md. 211, 66 A.2d 407, an action was brought to recover personal injuries when plaintiff fell on a stairway in defendant's home. It was said in that case at page 220, 66 A.2d 407: 'Plaintiff also complained because she was not allowed to introduced testimony that defendant painted the landing white after her accident. The fact that defendant painted the landing after the accident is not admissible in evidence as an admission of liability. Such testimony would be immaterial, because such action by defendant could not affect his liability at the time of the accident. (Citing cases.)" Id. at 107-108, 113 A.2d at 405.

Obviously the language in neither case goes any further than the question of the admissibility of the evidence to show an admission of liability. The rule to be applied here was stated in American Paving & Contracting Co. v. Davis, 127 Md. 477, 96 A. 623 (1916), where sparks from a steam shovel set fire to the plaintiff's house. Judge Thomas, for the Court, said:

'* * * that one of the plaintiff's neighbors had to use a hose to wet his house in order to prevent it from catching fire, and that when, a few days after the fire, the defendant's servants put a wire hood or screen over the smokestack, the sparks were very much smaller. Under the rulings in Gantt's Case, supra (Annapolis & Elkridge R. R. Co. v. Gantt, 39 Md. 115, 135) and Ryan v. Gross, supra (Ryan v. Gross, 68 Md. 377, 12 A. 115, 16 A. 302), this evidence was clearly admissible, not only for the purpose of showing that the fire was caused by the sparks from the steam shovel, but also as tending to show negligence on the part of the defendant. The mere fact that the defendant or its servants after the fire put a wire hood or screen over the smokestack would not be admissible for the purpose of establishing an admission of liability by the defendant (Ziehm v. United Electric, etc., Co., 104 Md. 48, 64 A. 61; Columbia & P. S. R. Co. v. Hawthorne, 144 U.S. 202, 12 S.Ct. 591, 36 L.Ed. 405), but evidence of the effect of the screen was admissible as reflecting upon the question whether the defendant had exercised proper care and caution to avoid injury to the plaintiff's property.' Id. at 483-484, 96 A. at 626.

To the same effect see Cordish v. Bloom, 138 Md. 81, 113 A 578 (1921); Becker Pretzel Bakeries, Inc. v. Universal Oven Co., 279 F.Supp. 893 (D.Md.1968); and Jennings v. United States, D.C., 207 F.Supp. 143, aff'd 318 F.2d 718 (4th Cir. 1963).

II.

Appellant offered in evidence Penney's answer to Interrogatory No. 4, Penney's objection to which was sustained. The interrogatory and the answer thereto are as follows:

'4. State whether any persons prior to February 15, 1965, complained or notified the defendant that they had difficulty with the door or adjacent glass panels because of inability to appreciate that the door or adjacent glass panels was (sic) there.'

'A. This question is objected to but without prejudice to such objection we do have information involving a customer who complained of walking into either a panel or door several years ago. We do not know the circumstances of this incident thus we cannot say how this came about.'

That the interrogatory and the answer thereto were improperly excluded does not require extended discussion. Maryland Rule 413, made applicable to interrogatories by Rule 417 f, provides as follows:

'Rule 413. Use of Deposition

'a. When May be used.

'At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used in accordance with any one of the following provisions:

'2. By Adverse Party.

'The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose.'

Since Penney is a party the answer is admissible 'for any purpose' except to the extent the rules of evidence make it inadmissible. We think the rule of Locke, Inc. v. Sonnenleiter, 208 Md. 443, 118 A.2d 509 (1955), is controlling. Judge Hammond (now Chief Judge) said, for the Court, in that case:

'The rule followed by the majority of the cases is that if the evidence as to past accidents, tendencies or defects is sufficiently relevant and illuminating because there is similarity of time, place and circumstance, it will be admissible-not as direct evidence of negligence but to show the existence of a danger or defect in the character of a place, method or appliance and to show knowledge or notice of the danger or defect on the part of the defendant, unless, in its discretion, the trial court believes it will cause an unfair surprise or confusion by raising collateral issues. Wigmore on Evidence, Third Ed., Vol. 2, Sec. 443-444, 252, 451, 458; McCormick on Evidence, Sec. 167; 65 C.J.S. Negligence § 234, Robitaille v. Netoco Community Theatres, 305 Mass. 265, 25 N.E.2d 749, 128 A.L.R. 595. In Sears, Roebuck & Co. v. Copeland, C.C.A. 4, 110 F.2d 947, evidence of a prior accident on faulty steps was held proper. Judge Soper said for the Court that the general rule is '* * * that evidence of this kind is relevant if it relates to an occurrence which happened under substantially the same conditions, at substantially the same place as the accident in suit, and at a time not too remote therefrom. * * * (Citing cases). Such evidence tends to show the dangerous qualities of the thing or place, and knowledge of these qualifies on the part of the owner or possessor." Id. at 447-448, 118 A.2d at 511.

'In our opinion the rule makes evidence of prior...