Erdman v. Johnson Bros. Radio & Television Co., 118

Decision Date16 December 1970
Docket NumberNo. 118,118
Citation260 Md. 190,271 A.2d 744
Parties, 8 UCC Rep.Serv. 656 Earl T. ERDMAN et al. v. JOHNSON BROTHERS RADIO AND TELEVISION CO., Inc.
CourtMaryland Court of Appeals

Edward C. Mackie, Baltimore (Warren K. Rich and Rollins, Smalkin, Weston & Andrew, Baltimore, on the brief), for appellants.

James L. Mann, Jr., Baltimore (Jack L. Hardwick, Frank J. Tripoda and Hardwick & Tripoda, Baltimore, on the brief), for appellee.

Argued before HAMMOND, C. J., and BARNES, FINAN, SINGLEY and SMITH, JJ.

FINAN, Judge.

It has been said that 'the seller's war ranty is a curious hybrid, born of the illicit intercourse of tort and contract, unique in the law.' 1 A further reading of this opinion will show why.

On June 24, 1965, the appellants (Erdman and Pfaff) purchased a color television-radio-stereo console from the appellees (Johnson Brothers) for approximately $1,000. As events unfolded this proved to be a most unfortunate investment. The set was put into operation by one of Johnson Brothers' repairmen, and Erdman and Pfaff looked forward with great expectations to many hours of pleasant viewing. Their joy soon turned to consternation, however, as they began experiencing difficulty with the set almost from the outset. In an act of great foresight, the appellants had purchased a service policy from Johnson Brothers; they had many occasions to avail themselves of its benefits.

Approximately one month after the purchase, the set was sent back to Johnson Brothers for repairs, and was returned to the appellants' home about a week later. Sometime after that, Erdman noticed a 'crackling sound' in the television; the noise was often accompanied by a 'tear' in the picture. This, of course, precipitated complaints by the appellants to Johnson Brothers, and resulted in some two dozen service calls to the appellants' house. Sometime in September, 1966, Erdman and Pfaff for the first time noticed sparks and heavy smoke shooting out of the back of the set and the smell of burning rubber, wire, or some other substance. Another complaint was made. Johnson Brothers' serviceman examined the set on September 30, 1966, and stated that whatever had happened had 'fused itself together again,' and that if anything serious developed he would be able to fix it.

For the next few months the television operated in its usual (cantankerous) manner and there was no difficulty serious enough to warrant another complaint, at least not until December 7, 1966, a Wednesday. On that date Erdman called Johnson Brothers and for the second time complained about having seen actual sparks and smoke emanating from the rear of the television. The person taking this complaint ventured no opinion as to the cause of the trouble, and merely noted that there would be a serviceman out to the appellants' house on Saturday, December 10, 1966. (Inasmuch as Erdman and Pfaff both worked during the week, the usual practice of the parties was to have the set serviced on Saturdays, as a matter of convenience to the appellants. The very fact that it was necessary to establish a 'policy' for making service calls to the plaintiffs' residence perhaps describes the condition of the set more eloquently than this Court ever could.)

On the fateful evening of Thursday, December 8, 1966, (after the second complaint and prior to the day on which the repairs were to be performed) Erdman and Pfaff watched television from approximately 11:20 P.M. until 1:30 A.M. of Friday, December 9, 1966, at which time they observed for the third time that there were sparks and smoke coming from the set. They turned off the television, and retired for the night. About half an hour later they were awakened by the barking of one of their eleven dogs, and discovered that a fire was very much in progress in the vicinity of the television set. The fire spread rapidly, and by the dawn's early light Erdman and Pfaff saw, tragically, that their residence had been completely destroyed. The total loss in real and personal property was $67,825.91.

Suit was brought in Baltimore County, the appellants alleging in one count a breach of warranty in the sale to them of a defective unit, and in the other count a breach of the service contract and negligence. The lower court (Turnbull, J.) sitting without a jury, ruled that there was no breach of the service contract, that the appellants' use of the set was not 'normal' under the circumstances, thereby negating the warranty of merchantability and, without deciding whether or not there was any primary negligence on the part of the appellees, ruled that the appellants' use of the set amounted to contributory negligence under the facts of this case. The court therefore rendered judgment for the appellees, and the appellants brought this appeal.

They urge that their conduct did not negate the warranty of fitness, that they were not contributorily negligent, and that the trial court wrongfully excluded the expert opinion testimony of two of their witnesses. In our view of the case, the key to the decision turns on the conduct of the appellants.

The Uniform Commercial Code (U.C.C.) Maryland Code (1964 Repl.Vol.) Art. 95B, governs the sale of the television in this case, and it provides that anyone who sells goods and who is a merchant with respect to that kind of goods, impliedly warrants in his contract for sale that the goods sold are 'merchantable.' In order for goods to be considered merchantable, they must be 'fit for the ordinary purposes for which such goods are used.' Code (1964 Repl.Vol.) Art. 95B (U.C.C.), § 2-314(2)(c). It would appear that Johnson Brothers most assuredly is a merchant within the meaning of the U.C.C. (§ 2-104) and that they gave an implied warranty to the appellants that the television in question was fit for the ordinary purposes to which a television might be put. The Official Comments to § 2-314 state that protection under the 'fitness for ordinary purposes' aspect of the implied warranty of merchantability extends not only to a person buying for resale to the ultimate consumer (e. g. a retailer), but also, as here, to the ultimate consumer for his own use.

Section 2-714 of the U.C.C. indicates that a buyer may recover not only normal damages from a seller in case of breach, but in a 'proper case' the buyer may also recover incidental and consequential damages. Section 2-715 provides that consequential damages may include any 'injury to person or property proximately resulting from any breach of warranty.' Code (1964 Repl.Vol.) Art. 95B (U.C.C.), § 2-715(2)(b).

The Comments to the U.C.C. speak in terms of 'causation' with respect to the implied warranty of merchantability. Comment 13 to § 2-314 (implied warranty of merchantability) indicates that the buyer must show not only a breach of warranty, but also that the breach was the 'proximate cause of the loss sustained.' Comment 5 to § 2-715 (consequential damages) treats 'proximate causation' in more explicit terms, reiterating the fact that the section allows damages for injuries resulting 'proximately' from the breach of warranty. In further delineation, the Comment states that if the buyer did in fact discover a defect in the goods prior to his using them, then the injury suffered from the use of the goods would not proximately result from the breach of warranty. See also 1 Hawkland, Transactional Guide to the Uniform Commercial Code, 268 (1964); 1 Anderson's Uniform Commercial Code, § 2-715, p. 454, Notes 13 and 14 (1964 Sum.Supp.). The U.C.C. view of the question of warranty in terms of principles of causation is in harmony with the view of the text writers who have addressed themselves to the problem. See W. Prosser, Law of Torts, 651-657 (3rd Ed. 1964); 1 Hursh, American Law of Products Liability, § 3:9.

At this juncture it is appropriate that we review the rationale upon which the trial judge predicated his opinion. Judge Turnbull stated:

'I think the law is that there was a warranty, either expressed or implied, from Johnson to the Plaintiffs, warranty that this television set would operate safely for the general purpose for which it was intended when used in a normal manner.

'* * * You have a man of high intelligence, who purchased this television set, who continued to use it, even though he knew and had complained that it was arcing, smoking, with actual sparks and a burning odor. Now using a set which is in that condition is certainly not, in my opinion, a use in a normal manner. So that it is my opinion, and I so hold that, even assuming the fire came about as a result of a defect in the set, that the warranty did not extend to the point, under the circumstances of this case, of covering the Plaintiff's damages resulting from the fire. So that I find, and hold that, under the warranty, the Defendant is not responsible to the Plaintiffs.

'* * * (I)t is inescapable to me that the Plaintiffs were guilty of contributory negligence in failing to act as an ordinarily prudent person would act under the circumstances then and there existing, in that, knowing that the set was sparking, arcing, burning or there was an odor of burning, nonetheless, they used the set for a period of, according to the testimony, somewhere in the general neighborhood of two hours, on the late evening and early morning of December 8th and December 9th. I believe that that constitutes negligence; * * *.

'* * * So that, sitting as a trier of the facts sitting as a jury, gentlemen, I find that it is inescapable that, even if you assume primary negligence, any trier of the facts must find that there was glaring contributory negligence on the part of the plaintiffs (appellants).'

Judge Turnbull in his opinion makes it abundantly clear that he was of the opinion after hearing all the facts that the appellants used the television set after discovering the defect (when they noticed the burning and sparks and made their second complaint on December 7, 1966), and that therefore the...

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