BARNES, J., delivered the opinion of the Court.
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.
The first count is the important one, and contains, in relevant part, the following allegations:
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:
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:
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
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. Such a motion was duly filed. 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.
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):
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 the Maryland cases by Joseph O. Kaiser, of the Baltimore bar and formerly lecturer on pleading at the Law School of the University of Maryland, in his article, Pleading Negligence in Maryland — Res Ipsa Loquitur as a Rule of Pleading, 11 Md. L. Rev. 102, at pages 103-104 (1950):
Cases which illustrate the sufficiency of general statements of the act or omission and a general allegation of negligence are Philadelphia, Baltimore & Washington R.R. Co. v. Allen, 102 Md. 110, 62 A. 245 (1905), involving an action by a passenger against a common carrier and American Express Company v. Denowitch, 132 Md. 72, 103 A. 96 (1918), involving an action to recover for injuries resulting from a motor vehicle collision. In Allen our predecessors held that in view of the high duty owed by a common carrier to its passenger and the statutory form of declaration directly applicable to that situation, the declaration was sufficient which contained allegations that the carrier negligently managed the car and train in which the plaintiff passenger was riding and that the passenger was thereby thrown down and wounded and injured. In Denowitch a declaration in a motor vehicle collision case was held sufficient if it alleged that the defendant negligently drove his vehicle into the plaintiff as a consequence of which the plaintiff, without fault on the plaintiff's part, was injured. Except in cases involving such simple and specialized situations as the motor vehicle and carrier-passenger cases, this Court has consistently held that a declaration must, as stated by Judge Alvey, for the Court, in Gent v. Cole, 38 Md. 110, 113 (1873) (quoting in part from an opinion by Mr. Justice Butler in Rex v. Lynne Regis, Doug. 159), have sufficient specificity in its allegations to provide "facts * * *, `for the purpose of informing the court, whose duty it is to declare the law arising upon these facts, and to apprise the opposite party of what is meant to be proved, in order to give him an opportunity to answer or traverse it.'" (Emphasis in original.)
This principle of pleading has been applied in many types of cases. In the landmark case of State, use of Jeter v. Schwind Quarry Co., 97 Md. 696, 55 A. 366 (1903),
In Livingston v. Stewart & Co., Inc., 194 Md. 155, 69 A.2d 900 (1949), the declaration alleged that while the plaintiff was a business invitee in the defendant's department store, a two-wheel bicycle fell on the plaintiff as a result of which the plaintiff was injured through the negligence of the defendant and without any fault of the plaintiff. In the bill of particulars filed by the plaintiff, it was stated that the exact facts of the negligence of the defendant were particularly within the knowledge of the defendant which had sole control of the bicycle. This Court held that the lower court properly sustained the demurrer to the declaration because 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." (194 Md. at 159, 69 A.2d at 901.) Judge Markell, for the Court, in Livingston quoted with approval from Phelps v. Howard County, 117 Md. 175, 177, 82 A. 1058, 1059, that "`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.'" (194 Md. at 159, 69 A.2d at 901.)
In applying the principles of pleading established by the authorities mentioned, we have concluded that the lower court properly sustained the demurrer to the declaration in the present case, for at least two reasons: (a) the declaration does not sufficiently allege negligence and (b) it fails to allege sufficiently a causal connection between the negligence sought to be charged and the injuries allegedly sustained and that such negligence was the proximate cause of the injury sustained.
In considering the allegations of the declaration, it is well established that any ambiguity or want of certainty in those allegations must be construed against the pleader. As Judge (now Chief Judge) Hammond stated, for the Court, in Carder v. Steiner, 225 Md. 271, 276, 170 A.2d 220, 222 (1961):
The act of the defendant alleged in the declaration is that the defendants "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 said premises." There are no allegations in regard to the size of the board or the specific nature of the danger allegedly involved. There are no allegations that danger existed because the board projected from other boards, or because it was placed on an angle, or because there was a difference
As in Jeter, supra, there are no allegations of circumstances which would require the defendants to give a warning; there are no allegations which indicate that any danger (not specified in the declaration) created by the board as constituting all or part of the walkway, as the case may be, was not subject to ordinary and obvious observation and as a consequence there was a duty on the defendants to warn. Unless any dangerous implications arising from the presence of the board were such as not to be obvious to ordinary observation by a person in the position of Mrs. Brooks, there would be no primary negligence. The usual nature of planks is so well known and the use of planks as walkways is so usual, that Colwill was entitled to assume, in the absence of any facts other than those alleged in the declaration, that pedestrians are as familiar with the usual aspects and consequences of the use of planks as a walkway as was Colwill. As Judge Melvin, for the Court, quoted from 20 R.C.L. 14, 15 in Yaniger v. Calvert Bldg. & Con. Co., 183 Md. 285, 290, 37 A.2d 263, 265 (1944):
In the declaration in the present case, there is no hazard alleged other than the normal, obvious and usual incidents of the
The lower court was also correct in holding that the declaration was defective in failing to allege a causal connection between the negligence sought to be charged with the injury sustained and that the negligence charged was the proximate cause of the injury sustained. As Judge Collins, for the Court, aptly stated in Bohlen v. Glenn L. Martin Co., 193 Md. 454, 463, 67 A.2d 251, 255 (1949):
The allegations in the declaration appear to state that Mrs. Brooks lost her footing as she was walking on a wooden walkway consisting of a board at the rear of Read's store. It is apparent that if she was already walking on the walkway, she did not trip over the board because of any difference in the board's height from the ground. There is no supporting allegation in regard to how Mrs. Brooks' loss of her footing was caused by, or connected with, any negligence of the defendants. Again, as in Jeter, supra, there is no specification of the nature of the danger, how that danger was connected with any negligence of the defendants, and how the loss of footing by Mrs. Brooks was proximately caused by any danger which the defendants had negligently created.
Colwill contends with much force that the allegations of the declaration indicate that Mrs. Brooks was guilty of contributory negligence as a matter of law, relying on Yaniger v. Calvert Bldg. & Con. Co., supra. In view of our conclusion that the
Mrs. Brooks earnestly contends that the declaration followed the suggested forms set out in Code (1957), Article 75, Section 14 (36) and (37), and was patterned almost verbatim upon Official Form 5 b of the Maryland Rules.
Article 75, Section 14 (36) sets out the statutory form for the special case of a public carrier-passenger injury as follows:
We have already indicated that this special situation and the sufficiency of allegations for it are not in point in the present case.
Article 75, Section 14 (37) sets out the form of allegations for another special situation in regard to the maintenance of streets by a municipality. The statutory form is as follows:
Our predecessors have noted that this form is literally defective in that it fails to allege either actual or constructive notice of the alleged defective condition in the street, an essential to the statement of a good cause of action, but construed the form as implying such a necessary allegation. See Wash., B. & A.R. Co. v. Cross, 142 Md. 500, 505, 121 A. 374, 375 (1923) and Neuenschwander v. Washington Suburban Sanitary Comm., 187 Md. 67, 72, 48 A.2d 593, 596 (1946).
The special situation covered by this statutory form with the construction of it by this Court obviously makes it of little
The reliance of Mrs. Brooks on Official Form 5 b is also misplaced. In that form, the following is set forth:
In this form it is alleged that the defendant department store "permitted a loose board to protrude several inches above the level of the third stair from the top of the stairway between the second and third floor of the store;" (emphasis supplied) this condition was hazardous to persons using the stairs; no warning was given the plaintiff of the existence of the condition or the danger; that the plaintiff tripped and fell as he was descending the stairway, resulting in pain and injury, all of which was proximately caused by the defendant's negligence.
In regard to the second count, the allegations of the first count are incorporated by reference in the second count. The allegations of the first count are insufficient to state a cause of action against Colwill, as we have indicated. These allegations and similar allegations in the second count are likewise insufficient to give rise to a claim by Mr. Brooks, as husband, for loss of consortium, in that no liability by Colwill for the injuries of Mrs. Brooks has been sufficiently alleged.
Colwill raises the point that, in any event, the demurrer was properly sustained in regard to the second count as Mrs. Brooks was a necessary party to the second count in that, as a result of our decision in Deems v. Western Maryland Ry., 247 Md. 95, 231 A.2d 514 (1967), the loss of consortium is the joint property of the husband and wife. As Deems was decided after the order of the lower court sustaining the demurrer was passed, the present case could raise the question left open by us in Note 7 of the Deems opinion, i.e., "the question of the right of the husband to pursue a pending action which he has brought for loss of consortium due to personal injuries of the wife when the joinder of the wife in such an action has been effectively
It was proper for the lower court to enter a judgment for Colwill for costs after the plaintiffs below declined to amend, but the entry of such a judgment will not, of itself, be a reason for striking out the third party cross-claim of Read against Colwill inasmuch as Read filed its motion for leave to file a third-party cross-claim against Colwill prior to the filing of the motion for judgment by Colwill. The entry of judgment for Colwill for costs will be without prejudice to further consideration by the lower court on the remand of the order of June 15, 1967, striking out Read's cross-claim against Colwill as hereinafter set forth.
In the present case, Read was given leave to amend its declaration, so that the provisions of Maryland Rule 345 (e), which provides that an order sustaining a demurrer to the entire declaration, without leave to amend, shall be deemed to include and constitute a final judgment for costs for the demurring party, do not apply. See Lange v. Board of Education, 183 Md. 255, 258-59, 37 A.2d 317, 320 (1944). It was necessary for Colwill after the plaintiffs declined to amend during the time allowed, to move for judgment for costs and there was no final judgment until such judgment was entered upon Colwill's motion. Read obtained leave of court (even though ex parte) to file its third-party cross-claim against Colwill and actually filed its cross-claim prior to the filing of Colwill's motion for judgment, so that the entry of judgment for Colwill for costs after the filing of the cross-claim did not eliminate Colwill as a party and justify the granting of Colwill's motion to strike Read's cross-claim for that reason. The lower court was also in error in concluding that, in any event, any claim of Read for indemnity or contribution against Colwill was barred by the three-year Statute of Limitations from the time of the injury, as it is clear that the right of indemnity or contribution does not accrue until Read suffers or pays a judgment,
Judgment for costs in favor of Colwill Construction Company, Inc., dated June 14, 1967, affirmed, without prejudice to further consideration by the lower court of the motion to strike the cross-claim of The Read Drug and Chemical Company of Baltimore City as set forth in the aforegoing opinion, and the order of June 15, 1967, striking out that cross-claim is remanded without affirmance or reversal for further proceedings as set forth in this opinion. Costs to be paid by the appellant, The Read Drug and Chemical Company of Baltimore City.