Livingston v. Stewart & Co., Inc.

• Decision Date: 09 December 1949
• Docket Number: 53.
• Citation: 69 A.2d 900,194 Md. 155
• Parties: LIVINGSTON v. STEWART & CO., Inc.
• Court: Maryland Court of Appeals

69 A.2d 900

194 Md. 155

LIVINGSTON v. STEWART & CO., Inc.

No. 53.

Court of Appeals of Maryland

December 9, 1949

Action by Sylvia Livingston against Stewart & Company, Inc., for damages resulting from personal injuries sustained when bicycle fell upon the plaintiff in defendant's store.

The Court of Common Pleas of Baltimore City, Herman M. Moser, J sustained a demurrer to the plaintiff's declaration as limited by bill of particulars, and the plaintiff appealed.

The Court of Appeals, Markell, J., held that the declaration as limited by the bill of particulars did not state a cause of action and affirmed the judgment.

Eugene A. Alexander, III, Baltimore (Leon Hoffman Baltimore, on the brief), for appellant.

Talbot W. Banks, Baltimore (Thomas G. Andrew, Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

MARKELL, Judge.

This is an appeal from a judgment for defendant after a demurrer to the declaration, as limited by bill of particulars, had been sustained.

Defendant conducts a department store in Baltimore, where the public including plaintiff, is invited to enter as a customer to inspect or purchase its goods and merchandise; on December 20, 1948 plaintiff, in response to defendant's implied invitation, entered the store for such purposes; while she was looking at various toys in the store, she was violently struck by a 'two-wheel bicycle', the bicycle falling on plaintiff and pinning her leg against a show case or fixture in the store; the bicycle struck and fell upon plaintiff directly and solely as the result of the negligence, carelessness and recklessness on the part of defendant's agents who were in charge of the toy department, plaintiff's leg was most seriously injured and she suffered other injury; the accident and resultant injuries were caused solely through and by the carelessness, recklessness and negligence of the agents of defendant and through no fault on the part of plaintiff thereunto contributing. So the declaration alleges.

In answer to demand for particulars and to exception to plaintiff's original answer thereto, plaintiff says that the facts constituting recklessness, carelessness and negligence on the part of the agent, servant and employees of defendant are peculiarly within the knowledge of defendant inasmuch as the instrumentality causing the injury complained of was within the control of and under the management and supervision of defendant, its agents, servants and employees.

In Maryland, by a long series of statutes dating back earlier than the Constitution of the United States and by rules of court in recent years, common law pleading and practice has been so simplified as to be rid of most of the cumbersome technical requirements at common law and to remain free from the brood of new niceties of code pleading. 'Whatever facts are necessary to constitute the ground of action * * * shall be stated in the pleading and nothing more; and facts only shall be stated and not arguments, or inferences, or matter of law or of evidence, or of which the court takes notice ex officio.' Code, art. 75, sec. 2; Act of 1856, ch. 112, sec. 52. The requirement of 'facts' and not 'inferences' or 'evidence' must include facts, e. g., negligent conduct, and not merely circumstantial evidence from which the facts may be inferred. Even at common law, and especially in Maryland, no great particularization of facts and circumstances is necessary in stating a cause of action for negligence. Art. 75, sec. 28, subsecs. (36, 37, 38); Hearn v. Quillen, 94 Md. 39, 41-42, 50 A. 402; Phelps v. Howard County, 117 Md. 175, 82 A. 1058; Washington, B. & A. Electric R. Co. v. Cross, 142 Md. 500, 504-506, 121 A. 374. There must, however, be 'certain and definite allegation of the circumstances' sufficient to show a duty owed by defendant to plaintiff and a breach by defendant of that duty, as well as resulting injury. Jackson v. Pennsylvania Railroad Company, 176 Md. 1, 5, 3 A.2d 719, 721, 120 A.L.R. 1068. And 'the general characterization of an act or omission as negligent, or of a condition as unsafe is not usually a sufficient statement of the supposed ground of liability.' Phelps v. Howard County, 117 Md. 175, 177, 82 A. 1058, 1059.

Manifestly the declaration in the instant case is not sufficient on demurrer. It contains only the argumentative conclusion that plaintiff's injuries were caused by defendant's negligence, but states no acts done or left undone by defendant which constitute negligence or a negligent manner of doing anything. It falls short of the statutory forms of declarations (supra) and the decisions of this court. Jeter v. Schwind Quarry Co., 97 Md. 696, 698, 55 A. 366; Anne Arundel County Com'rs v. Carr, 111 Md. 141, 144-145, 148-149, 73 A. 668; Frisch v. Baltimore, 156 Md. 310, 144 A. 478.

After a declaration has been amplified by a bill of particulars, a demurrer to the declaration raises the question of sufficiency of the declaration as particularized. The bill of particulars thus does not expand but limits the scope and generality of the declaration. Cleaves v. Sharp & Dohme, Inc., 166 Md. 546, 171 A. 374. In the instant case the 'particulars' neither add nor subtract any facts. They merely assert knowledge by defendant (and imply lack of knowledge by plaintiff) of unstated facts.

By her declaration and bill of particulars, and in argument plaintiff seeks to excuse the insufficiency of the declaration by invoking the doctrine or expression res ipsa loquitur. In the earliest reported negligence case in which that expression was used mention was made of the circumstance that the defendant presumably was in a better position than the plaintiff to know or learn the facts of the accident. Byrne v. Boadle (1863), 2 H. & C. 722, 725. Just what bearing this circumstance has upon the application of the doctrine res ipsa loquitur is one of many still mooted questions surrounding that doctrine. Without pursuing the ramifications of the question, it may at least be said that never in Maryland--and seldom, if ever, elsewhere--has it been held that, if the facts do not give rise to a reasonable inference of the defendant's negligence, the plaintiff, who has the burden of proof, can make out a case by proving that he is ignorant of other facts or knows less about them than the defendant. Cf. Prosser, Res Ipsa Loquitur in California, (1949), 37 Cal. Law Review 183, 202-204. If the 'presumption' of negligence in res ipsa loquitur cases is ever more than an inference from circumstantial evidence (which Mr. Roszel C. Thomsen says is not a true presumption, Presumptions and Burden of Proof in Res Ipsa Loquitur Cases in Maryland, 3 Maryland Law Review 285, 288), the usual operation of the doctrine is to support an inference from circumstantial evidence, based on probability. 'The law requires proof of probable, not merely possible, facts, including causal relations. Reasoning post hoc, propter hoc is a recognized logical...