Munzert v. American Stores Co.

Henderson, J., filed the following dissenting opinion, in which Bruns, C. J., and Sybert, J., concurred. I agree with the holding of a majority of the Court that the facts in this case bring it within the scope of the so-called doctrine of res ipsa loquitur. The factual situation, involving a falling stack of goods on or about store premises, is one in ¹⁰⁷ which the doctrine has been frequently applied. See the cases collected in Note 20 A.L.R. 2d 95 .

I also agree that, although the defendant’s employee testified that the boxes were properly stacked, the jury was not compelled to believe him, and could properly have found that the fall was due to improper stacking. On the question of “exclusive control,” I should also agree that the short interval of time, less than 5 minutes, during which the boxes were unattended and unobserved, after the employee entered the store and while the plaintiff was walking to her car and entering, starting and driving it past the boxes, meets the test, and effectively rules out any inference that the fall was caused by the interference of a third person. Cf. Joffre v. Canada Dry, Inc., 222 Md. 1, 8 and Nalee, Inc. v. Jacobs, 228 Md. 525, 531 .

See also Dee v. Housing Auth. of Baltimore, 203 Md. 453 and Walker v. Vail, 203 Md. 321 . There was no testimony that any third person was in the vicinity, or that any high wind was blowing. I think, however, that just as the jury could properly have found that the fall was caused by negligent stacking, so it could properly find, as it apparently did, that the fall was caused by the interference of the plaintiff herself, despite her testimony that she did not touch the stack. Ruling out the remote possibility of interference by a third person or an act of God, we have the undisputed fact that the boxes were well enough stacked to permit the dolly to be wheeled from the store and securely lodged against a metal upright, or lolly-pole, supporting the sidewalk awnings, where it was found undisturbed after the alleged accident, when one of the three stacks was found on the sidewalk.

The plaintiff’s testimony is that she had pushed her loaded grocery cart alongside her automobile, after she parked the automobile at the curb, and had her left hand on the cart handle and her right hand on the door handle when she was struck in the head and shoulder by a falling box or boxes. She testified that the cart was between her and the dolly, and that the dolly was “roughly” 5 feet behind the rear end of her automobile, or a distance of about 14 feet from the door handle. Since the evidence was that the top of the boxes on the dolly was 5 feet 6 inches from the ground (Mrs. Munzert testified that it was about a foot higher) ¹⁰⁸ and she was admittedly 5 feet 4 inches tall, it is almost inconceivable that a box falling off the top of the stack could strike her in the head. It would seem that it would necessarily land 6 or 7 feet from where she was standing, and not even strike the cart.

The testimony of the employee was, however, that when he came out of the store the rear end of the automobile was alongside the dolly. This would doubtless bring the plaintiff within range of the falling boxes. It would also bring the cart within range of the dolly. Since the boxes obviously had enough initial stability to remain in position while pushed on the dolly, by far the most probable explanation is that the plaintiff, carelessly and perhaps unknowingly, pushed her cart with her left hand as she reached for the car door with her right, and struck the dolly or lower tier of boxes with sufficient force to dislodge the top ones in the only stack that fell.

At least it is perfectly clear to me that the jury was entitled to consider that as a hypothesis of what happened equally as probable as the hypothesis that the fall was due solely to the improper stacking of the boxes and the force of gravity. The fact that the plaintiff testified that she did not touch the boxes is not controlling. Of course, if she had admitted striking them, or had otherwise explained the cause of the fall, she would have put herself outside the scope of the doctrine. Nalee v. Jacobs, supra (p. 532), and cases cited.

Under the third test laid down in Williams v. McCrory Stores Corp., 203 Md. 598, 601 (adopted from Wigmore), the injurious occurrence must have happened irrespective of any voluntary action at the time by the party injured. Prosser, Torts (2d ed.), p. 201, states the third test in somewhat different terms: “[I]t must not have been due to any voluntary action or contribution on the part of the plaintiff.” At p. 208 he states: “Allied to the condition of exclusive control in the defendant is that of absence of any action on the part of the plaintiff contributing to the accident. Its purpose, of course, is to eliminate the possibility that it was the plaintiff who was responsible.” As stated in 2 Harper & James, The Law of Torts, § 19.8: “What is needed here is that the plaintiff’s own negligence, along with that of anyone else for whom defendant is not responsible, be ¹⁰⁹ eliminated so as to complete the basis for an inference that the negligence of which the thing speaks is probably that of