Read Drug & Chemical Co. of Baltimore City v. Colwill Const. Co.

• Decision Date: 01 July 1968
• Docket Number: No. 285,285
• Citation: 243 A.2d 548,250 Md. 406
• Parties: The READ DRUG AND CHEMICAL COMPANY OF BALTIMORE CITY et al. v. COLWILL CONSTRUCTION CO., Inc.
• Court: Maryland Court of Appeals

Page 406

250 Md. 406

243 A.2d 548

The READ DRUG AND CHEMICAL COMPANY OF BALTIMORE CITY et al. v. COLWILL CONSTRUCTION CO., Inc.

No. 285.

Court of Appeals of Maryland.

July 1, 1968.

George T. Tyler, Baltimore (Thomas D. Washburne, Baltimore, on the brief), for Read Drug and Chemical Co. of Baltimore City, part of appellants.

Bryan B. Haddaway, Baltimore (Howard C. Bregel and Calvert R. Bregel, Baltimore, on the brief), for Nora M. Brooks et al., other appellants.

Melvin J. Sykes, Baltimore (Paul M. Highnbothom, Baltimore, on the brief), for appellee.

Before HAMMOND, C. J., and MARBURY, BARNES, McWILLIAMS, SINGLEY and SMITH, JJ.

BARNES, Judge.

This appeal principally involves the sufficiency of the allegations of a declaration in tort filed by Nora M. Brooks and Melvin J. Brooks, Jr., her husband, two of the appellants, against The Read Drug and Chemical Company of Baltimore City (Read) and Colwill Construction Company, Inc. (Colwill) to recover for damages allegedly resulting from the falling of Mrs. Brooks at the rear entrance to Read's place of business in the Dundalk Shopping Center in Baltimore County. Also involved is whether the Circuit Court for Baltimore County (Turnbull, J.) erred in granting Colwill's motion ne recipiatur and to strike the cross-claim of Read against Colwill.

On March 5, 1964, Mr. and Mrs. Brooks filed their declaration which contained two counts. The first count presented Mrs Brooks' claim against Read and Colwill; the second count alleged the claim of Mr. Brooks for loss of the services of his wife and for her medical expenses.

The first count is the important one, and contains, in relevant part, the following allegations:

'For that on or about March 5, 1961, the Defendant, The Read Drug and Chemical Company of Baltimore City, operated a drug store business at 29 Shipping Place, Baltimore 22, Maryland, located in the Dundalk Shopping Center, Baltimore County, Maryland, to which the public was invited to shop for drugs and merchandise, and on or about said date, the said Defendant, The Read Drug and Chemical Company of Baltimore City and the Defendant, Colwill Construction Company, Inc., caused, had in progress and undertook to make certain improvements, repairs or remodeling in and upon the said premises. The Plaintiff, Nora M. Brooks, on said date, was on the said premises and entering the said Defendants' store as a customer or invitee, in response to Defendants' invitation and the said Defendants negligently and carelessly permitted a loose board to be placed at the rear door or entrance of the said store for customers and invitees to walk upon to enter the said premises; that the said condition and walkway thus created was hazardous for persons using the said premises and store entrance, and no warning was given to the Plaintiff, Nora M. Brooks, of the existence of the said hazardous condition or the danger created thereby. While exercising due care, the said Plaintiff tripped and fell as she was walking on the said wooden walkway and was seriously, painfully and permanently hurt, injured and wounded in and about her head, neck, body, and limbs and was rendered unconscious, and she suffered and will continue to suffer great pain and severe and permanent injury and shock to her body and to her nerves and nervous system, and great pain and mental anguish, all of which was proximately caused by the negligence and carelessness of the said Defendants that the Plaintiff, Nora M. Brooks, came under treatment for her injuries by physicians and surgeons and is precluded from performing her customary duties, employment and engaging in her usual activities and pursuits, and she will, in the future, be prevented by her injuries and resulting infirmities, from performing any duty and engagement in any activity or pursuit requiring full and normal use of her body, neck and limbs, and she was, is, and will be otherwise hurt, injured, wounded and damaged, and that the said Plaintiff avers that all of her injuries, wounds, damages, pain, suffering and losses, past, present and future, were, are and will be due solely to and by reason of the negligence and carelessness of the Defendants, and without any negligence or want of due care on the part of the said Plaintiff directly contributing thereto, and the Defendants are jointly or severally liable to the said Plaintiff therefor.'

The ad damnum clause claimed $100,000.

The second count incorporated by reference the allegations of the first count, and alleges that Mrs. Brooks, wife of the plaintiff husband:

'* * * as a result of the Defendants' negligently and carelessly permitting a loose board to be placed at the rear door or entrance of the said drug store for customers and invitees to walk upon and to enter the said premises; and that as a result of the hazardous and dangerous condition created thereby, and the ensuing fall and injuries to the Plaintiff's Wife, Nora M. Brooks, all of which was proximately caused by the negligence and carelessness of the said Defendants, her Husband, the Plaintiff, suffered loss and damage and was and is and will be deprived of the services of his wife and has incurred and will incur expenses for her medical treatment and care and for the services of physicians requied to treat and administer to her injuries and resulting infirmities, and has suffered and will suffer other loss and damage.'

The ad damnum clause for the second count claims $50,000.

On April 5, 1964, Colwill filed a demurrer to the declaration alleging the following grounds:

'1. That the alleged cause of action did not accrue within three years before this suit.

'2. That the Plaintiffs' action is barred by the statute of limitations.

'3. That it is apparent from the face of the Declaration that the within cause of action did not accrue within three years before this suit.

'4. That said Declaration does not set forth any cause of action for which this said Defendant is liable to the Plaintiffs in damages in each and every count.

'5. That said Declaration does not set forth any legal liability on the part of this Defendant to the Plaintiffs.

'6. That it is apparent from the face of the Declaration that the Plaintiff was not an invitee or customer of this Defendant and therefore, the allegations in the Declaration as to duty owed to the Plaintiffs by this Defendant and as to breach of any such duty does not set forth any legal liability on the part of this Defendant to these Plaintiffs.

'7. That said Declaration is bad in substance and insufficient at law.

'8. And for such other and further reasons to be shown at the hearing hereon.'

On May 11, 1964, Read filed a special plea of limitations and the general issue plea that it did not commit the wrongs alleged, so that the action was at issue as between the plaintiffs and Read.

On the following day, May 12, 1964, Read filed a third-party claim against its landlord, the Dunleer Company, for all damages that may be adjudged against it in favor of the original plaintiffs. Although there have been several attempts to obtain service of the third party claim on the landlord, service had not been effected prior to the appeal in this case.

Judge Turnbull, on June 4, 1964, sustained Colwill's demurrer without leave to amend as to Colwill, with leave, however, to file a motion within 30 days to strike out the ruling. Read filed such a motion on June 16, 1964. Thereafter, on July 11, 1966, Colwill's demurrer was sustained with leave to amend in 30 days. On November 9, 1966, the trial court extended Colwill's time to plead and granted the plaintiffs leave to file an amended declaration. The plaintiffs, Mr. and Mrs. Brooks, elected not to amend, and on June 14, 1967, the lower court entered judgment for Colwill for costs. The appeal was seasonably taken to this Court from that judgment.

(1)

We are of the opinion that the lower court properly sustained Colwill's demurrer to the declaration, and, upon the election of Mr. and Mrs. Brooks not to amend, properly entered a judgment in favor of Colwill for costs.

The basic requirement for allegations in a declaration appears in Maryland Rule 301 c which states that it contain 'a clear statement of facts necessary to constitute a cause of action * * *.' (Emphasis supplied.) Our predecessors have held that a declaration in order to state a cause of action for negligence must allege, with certainty and definiteness, facts and circumstances sufficient to set forth (a) a duty owed by the defendant to the plaintiff, (b) a breach of that duty and (c) injury proximately resulting from that breach. As Judge Parke, for the Court, stated in Jackson v. Pennsylvania R. R. Co., 176 Md. 1, 5, 3 A.2d 719, 721 (1939):

'In order for a plaintiff to have a right of action in negligence against a defendant there must exist a duty which is owed by the defendant to the plaintiff to observe that care which the law prescribes in the given circumstances, a breach by the defendant of that duty, damages and injury suffered by the plaintiff as the demonstrable effect of the breach of duty. Negligence is, therefore, the absence of care according to the circumstances. So, an action for negligence involves the certain and definite allegation of the circumstances, and the failure of the defendant to exercise the care which the law required according to these circumstances. If the allegations should be insufficient to show a duty breached which was the efficient cause of the injury, the declaration is bad on demurrer.'

See 1 Poe, Pleading and Practice (5th Ed.), §§ 56-60. It is obvious that the necessary allegations of fact sufficient to state a cause of action for negligence in a simple factual situation vary from those in more complex factual situations and a form of declaration useful in the former situation may not be sufficient as a guide in preparing a declaration for the more complex case. This aspect of Maryland pleading is aptly summarized in a careful review of...