State v. Consol. Gas, Electric Light & Power Co. of Baltimore

• Court: Maryland Supreme Court
• Writing for the Court: DIGGES, J.
• Citation: State v. Consol. Gas, Electric Light & Power Co. of Baltimore, 126 A. 105 (Md. 1924)
• Decision Date: 22 July 1924
• Docket Number: No. 33.,33.
• Parties: STATE, to use of BOND et ux., v. CONSOLIDATED GAS, ELECTRIC LIGHT & POWER CO. OF BALTIMORE.

126 A. 105

STATE, to use of BOND et ux.,

v. CONSOLIDATED GAS, ELECTRIC LIGHT & POWER CO. OF BALTIMORE.

No. 33.

Court of Appeals of Maryland.

July 22, 1924.

Appeal from Superior Court of Baltimore City; Eli Frank, Judge.

"To be officially reported."

Action by the State of Maryland, to the use and for the benefit of Winfield H. Bond and Naomi E. Bond, his wife, parents of George Gunther Bond, deceased, against the Consolidated Gas, Electric Light & Power Company of Baltimore. From decree on demurrer for defendant, plaintiff appeals. Affirmed.

Argued before PATTISON, TJRNER, ADKINS, OFFUTT, DIGGES, and BOND, JJ.

Henry H. Dinneen, of Baltimore (Harry M. Benzinger, of Baltimore, on the brief), for appellant.

E. M Sturtevant, of Baltimore (Raymond S. Williams, of Baltimore, on the brief), for appellee.

DIGGES, J. This action is brought in pursuance of sections 1 and 2 of article 67 of the Code, generally referred to as Lord Campbell's Act, in the superior court of Baltimore City, the plaintiff being the state of Maryland, to the use and for the benefit of Winfield H. Bond and Naomi E. Bond, his wife, parents of George Gunther Bond, an infant, since deceased, the defendant being the Consolidated Gas, Electric Light & Power Company of Baltimore, a corporation.

The single question involved in this appeal is the correctness of the action of the lower court in sustaining a demurrer to the declaration. The effect of the demurrer is to admit, for the purposes thereof, all of the allegations of fact set out in the declaration, but to deny their legal sufficiency to sustain the action.

The declaration was filed on March 4, 1924, and on March 5, 1924, the defendant filed a demurrer to same in the following words:

"The defendant, Consolidated Gas, Electric Light & Power Company of Baltimore, a corporation, by Raymond S. Williams, its attorney, demurs to the amended declaration and each and every count thereof, and says that the said amended declaration and each and every count thereof is bad in substance and insufficient in law."

Issue was then joined on the demurrer, and on March 24, 1924, the court sustained the demurrer to the declaration without leave to amend, and judgment was entered for the defendant for costs. It is from this ruling on the demurrer, and from the judgment, that this appeal is taken.

The material averments of the first count of the declaration are that the defendant is a corporation engaged for its own profit in the manufacture, distribution, and sale of illuminating, cooking, and heating gas in the city of Baltimore, and also the sale of gas fixtures such as lamps, ranges, heaters, and burners intended by it to be used by the purchasers thereof in the consumption of gas sold by the defendant; that the gas manufactured and sold by the defendant is piped into homes and dwellings located in Haitimore City and distributed through such premises by smaller pipes, to which said smaller pipes are attached stopcocks, by the opening of which the gas is permitted to be discharged into the stove, burner, or heater and then ignited by the application of a flame thereto, thus producing heat or illumination or both, as the occupant of the house may require; that the equitable plaintiffs were the occupants of a certain dwelling known as No. 913 Homestead street, in the city of Baltimore, which dwelling was connected with the gas mains of the defendant, and gas was supplied through smaller pipes located in the building as above described; that in the month of September, 1922, the defendant sold to the equitable plaintiffs, to be used by them in the said dwelling for the purpose of creating auxiliary heat for the comfort of themselves and their children, a certain nonluminous gas heater; that this sale was made through an agent of the defendant duly acting in the course of his employment and well knowing the purpose for which the said heater was to be used; that the said agent of the defendant represented to the equitable plaintiffs that the heater so sold could be used with perfect safety by the equitable plaintiffs by attaching a hose leading from the said heater to the gas cock; that relying upon the representation of the defendant's agent, which representation was made for the purpose of inducing the equitable plaintiffs to purchase said heater, the equitable plaintiffs did buy the said heater and fully pay for same; that the warranty of the said defendant, made through its agent, that the heater could be used in the dwelling house with perfect safety, was untrue, and that the heater so sold was defective, in that when gas was supplied in the manner directed by the defendant's agent it produced a certain odorless, insidious, and extremely dangerous gas or vapor commonly known as carbon monoxide; that on or about the 11th day of February, 1923, while the equitable plaintiffs were using the said heater in the manner suggested by the defendant's agent and according to his direction, the same then and there generated, discharged, and diffused into the house of the equitable plaintiffs a large quantity of said poisonous gas known as carbon monoxide, of which fact the equitable plaintiffs were ignorant and had no means of learning of the existence thereof, whereby the infant son of said equitable plaintiffs, George Gunther Bond, was poisoned by inhaling the fumes of the said carbon monoxide, and as a direct and immediate consequence thereof died; that by reason of the false representations as to the utility and safety of said gas heater, and the wrongful act and default of the defendant, an action hath accrued to the said equitable plaintiffs, as parents of said infant decedent, to demand of the said defendant, for and by reason of said wrongful act and default, damages to compensate them for the loss of their said infant son, due to his death as above stated.

The second count of the declaration contains, in addition to what has been stated as being in the first count, the further allegation that the defendant, at the time of the sale of the said heater to the equitable plaintiffs, knew that the equitable plaintiffs relied on the defendant's judgment that the said heater should be reasonably fit for the purpose to which the equitable plaintiffs intended to put it, and that, as a matter of fact, the said heater was not reasonably fit for the purpose for which the equitable plaintiffs, in reliance as aforesaid upon the judgment of the defendant, had purchased it.

Section 1 of article 67 of the Code of Public General Laws provides that—

"Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony."

Article 83 of the Code, known as the Uniform Sales Act, § 33, provides:

"Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller's opinion only shall be construed as a warranty."

Section 36 of the same article, subsec. 1, provides:

"Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose."

The theory of the plaintiff's case, as set out in the declaration, is that there was an express or implied warranty by the defendant, in the sale from the defendant to the equitable plaintiffs, that the gas heater referred to in the declaration was safe and reasonably fit for the particular purpose for which it was sold, that the defendant knew the purpose for which the article was to be used, and that the equitable plaintiffs relied upon the judgment of the defendant in that...