Howard v. McCrory Corp.

• Decision Date: 25 June 1979
• Docket Number: No. 77-2527,77-2527
• Citation: 601 F.2d 133
• Parties: Susanne Berry HOWARD, Individually and in her capacity as Personal Representative of the Estate of John Eager Howard, Jr., and as Personal Representative of the Estate of Robert Berry Howard, a minor, Appellant, v. McCRORY CORPORATION, Successor to Best & Company, a Delaware Corporation, and S. S. Kresge Company, a Michigan Corporation, and Standard Knitting Mills, Inc., a Tennessee Corporation, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 133

601 F.2d 133

Susanne Berry HOWARD, Individually and in her capacity as

Personal Representative of the Estate of John Eager Howard,

Jr., and as Personal Representative of the Estate of Robert

Berry Howard, a minor, Appellant, v. McCRORY CORPORATION, Successor to Best & Company, a Delaware

Corporation, and S. S. Kresge Company, a Michigan

Corporation, and Standard Knitting

Mills, Inc., a Tennessee

Corporation, Appellees.

No. 77-2527.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 2, 1978.

Decided June 25, 1979.

Francis N. Iglehart, Jr., Towson, Md. (Leonard Decof, Providence, R. I., on brief), for appellant.

H. Emslie Parks, Towson, Md. (T. Bruce Hanley, Wright & Parks, Towson, Md., on brief), Jeffrey B. Smith, Baltimore, Md. (Michael A. Pretl, Smith, Somerville & Case, Baltimore, Md., on brief), R. Roger Drechsler, Baltimore, Md. (J. Paul Mullen, Lord, Whip, Coughlan & Green, Baltimore, Md., on brief), for appellees.

Before BRYAN, Senior Circuit Judge, and RUSSELL and PHILLIPS, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

This is a products liability case. The products involved are a cotton terry cloth robe and a cotton knit, plastic-footed sleeper set of pajamas. The robe was purchased on December 5, 1969, at Best & Company, a subsidiary of the defendant McCrory Corporation (hereafter designated McCrory), and had been supplied McCrory allegedly by the defendant Tom & Jerry Boys Wear, Inc. (hereafter designated Boys Wear). The pajamas, with the K-Mart label, bearing the designation "Pac-Nit," were purchased approximately April 12, 1971, at the S. S. Kresge Company (hereafter designated Kresge), and were allegedly furnished Kresge by the defendant Standard Knitting Mills, Inc. (hereafter designated Standard). The alleged defect in the products was that they were "inherently dangerous, highly flammable and not reasonably safe for children to wear." The action concerns serious burns sustained by Robert Berry Howard (hereafter designated Bobby), an infant three years of age, when his pajamas and bathrobe ignited in some unexplained way while the infant was playing, unattended in the den of his parent's home, on the morning of April 19, 1971. As a result of his burns, the infant was hospitalized from April 19, 1971, until his death on June 14, 1971.

In her original complaint, filed December, 1973, the plaintiff, the mother and surviving parent of Bobby, sought damages (1) individually for Bobby's alleged wrongful death under the Maryland Wrongful Death Statute, (2) as personal representative in the estate of Bobby for the pain and suffering sustained by him between the date of his injuries and his death, and (3) as personal representative of her deceased husband for medical and funeral expenses incurred, as well as for her deceased husband's claim for grief and the loss of Bobby's companionship during the weeks that he survived Bobby. ¹ The initial defendants were McCrory, Kresge and Indian Head, Inc. ² On June 13, 1974, Boys Wear and Standard were added as defendants. Plaintiff based her right of action on alleged claims of negligence, strict liability and breach of implied warranty of merchantability. The cause of action for wrongful death was, on motion, dismissed by the district court as barred by the applicable Maryland statute of limitations. The district court, also, before trial dismissed the warranty claim against McCrory as time-barred. The claim of the husband's estate for medical and funeral expenses was dismissed as to the defendants Boys Wear and Standard. A motion by the plaintiff for leave to file a second amended complaint setting forth a claim for burns she suffered in attempting to rescue her son and for mental shock and anguish suffered by the plaintiff from seeing her child engulfed in flames, was filed almost two and a half years after the commencement of the action and more than three years after the cause of action arose. In neither the original nor the first amended complaint was there any suggestion of such a cause of action. The district court held that under those circumstances, the action could not relate back to the date of the original or first amended complaint and, absent such relation back, the proposed new claim was barred by the appropriate Maryland statute of limitations. The district court also assigned as an additional discretionary reason for the denial of the motion, the inexcusable delay in filing such motion.

After the issues had been narrowed by these rulings on the various preliminary motions by the parties, the action came on for trial before a jury, and was submitted to the jury as to all defendants on the issues of negligence and strict liability, and on breach of implied warranty only as to Standard and Kresge. The jury returned verdicts in favor of Standard and Boys Wear "because the jury had concluded that plaintiff (had) failed to prove her allegations that each had manufactured clothing worn by Bobby Howard." Judgment was accordingly entered in favor of such defendants on the basis of the jury verdicts. The jury was unable, however, to agree upon a verdict in the actions against Kresge and McCrory, and, as to them, the district court declared a mistrial. After entry of judgments in favor of Standard and Boys Wear, the plaintiff moved that the jury verdicts in favor of such defendants be set aside, the judgments vacated and new trials granted. The defendants Kresge and McCrory in turn moved for judgments n. o. v. in their favor. The district court denied plaintiff's motion to set aside the verdicts and judgments in favor of Standard and Boys Wear but granted the motions of Kresge and McCrory for judgments n. o. v. in their favor. From the judgments entered, in accordance with the district court's order on the motions, the plaintiff appealed, assigning a number of errors. After appeal had been noticed, the plaintiff abandoned her claim of error in the district court's refusal to set aside the verdict and judgment entered in favor of Boys Wear and that judgment is no longer an issue in this appeal.

We address first the ruling by the district court on the preliminary motions. The plaintiff claims error in the district court's dismissal of her wrongful death action. Concededly this cause of action arose at the time of Bobby's death on June 14, 1971. The original complaint in the action was not filed until December 28, 1973. On June 14, 1971, the applicable Maryland statute of limitations for wrongful death was two years, measured from time of death. ³ In 1971 this statute was amended extending the limitations period from two to three years, effective as of July 1, 1971. ⁴ The district court found that the Maryland Court of Appeals in Slate v. Zitomer (1975) 475 Md. 534, 341 A.2d 789, had "held that (the) legislative extension of the limitation period from two to three years effective July 1, 1971, did not affect causes of action which arose between July 1, 1969 and June 30, 1971." The present case falls within that excepted class and the bar of the statute was thus not extended by the amendment of 1971. In 1976, however, the legislature of Maryland enacted a statute which, under the plaintiff's construction, gave the benefits of the amendments of 1971 to actions which arose subsequent to July 1, 1969. ⁵ At the time the statute of 1976 was enacted, however, the proposed action of the plaintiff for wrongful death had already been long barred. The Maryland Court of Appeals has held that the statute of 1971 was ineffectual in reviving actions such as that sought to be alleged by plaintiff which were barred at the time of its enactment. ⁶ That construction of the Maryland statute is controlling and the district court properly so ruled.

The plaintiff also complains of the denial by the district court of her motion to file a second amended complaint, setting up an entirely new cause of action not suggested in the original or amended complaint for physical injury arising out of "burns about the hands and wrists" of the plaintiff-mother, and for "mental shock and anguish," sustained by her individually. ⁷ The bar of the statute had accrued before the amendment was proposed, since the proposed amended cause of action setting forth an entirely new cause of action could not relate back to the original filing of the action under either the state or federal rule. Morrell v. Williams (1976) 279 Md. 497, 366 A.2d 1040, 1044-45; Griggs v. Farmer (4th Cir. 1970) 430 F.2d 638, 639; Schoonfield v. Mayor and City Council of Baltimore (D.Md.1975) 399 F.Supp. 1068, 1090, Aff'd. 544 F.2d 515 (4th Cir.). It must be conceded, too, that the plaintiff was exceedingly tardy in asserting this new claim, known to her from the date of the fire three years earlier, and the district court's denial of the right to file the second amended complaint on this, and other assigned grounds, would not have been an abuse of discretion, even if this new claim had not been barred by the statute of limitations. Freeman v. Continental Gin Company (5th Cir. 1967) 381 F.2d 459, 468-69.

We turn now to the disposition of the motion of the plaintiff for a new trial and the defendants' motions for judgments n. o. v. Since the plaintiff has abandoned her motion as far as Boys Wear is concerned, our first inquiry under plaintiff's motion is directed at the denial of plaintiff's motion to set aside the jury verdict and judgment absolving Standard.

There was an issue in the case whether Standard was the manufacturer of the pajamas worn by Bobby at the time he was burned. The nearest the plaintiff came in proof on this point was evidence that Standard had sold sleeper pajamas marked "Pac-Nit," under the K-Mart label, to Kresge during the years when the pajamas in question were purchased. She failed to prove, however, that Standard was the sole supplier. And "Pac-Nit" was a trademark, licensed for use by a number of other manufacturers than Standard. Whether Standard was the...