Undeck v. Consumer's Discount Supermarket, Inc.

Powers, J., delivered the opinion of the Court. In this products liability case the efforts of Joan Undeck and her husband to win damages in the Circuit Court for Montgomery County were frustrated when the trial judge directed verdicts in favor of the two defendants at the close of the plaintiffs’ evidence on the issue of liability. This appeal is from the judgments entered on those verdicts. Mrs. Undeck, joined by Joseph Undeck, her husband, sued Consumer’s Discount Supermarket, Inc. and Sterling Drug, Inc. The second amended declaration alleged that Sterling Drug, Inc. manufactured and distributed a disinfectant-cleaner known as Lysol, and that Consumer’s Discount Supermarket, Inc. operated a retail grocery where it offered Lysol for sale.

Alleging that Mrs. Undeck purchased a bottle of Lysol, packaged in a cardboard container, and was injured when the bottle fell from its package and shattered on the floor of the supermarket, the Undecks claimed damage against both defendants in one ⁴⁴⁶ count based upon breach of warranty and in another count based upon negligence. In a third count both claimed damages for detriment to their marital relationship. At the trial, held before a jury and Judge John F. McAuliffe in the Circuit Court for Montgomery County on 14 January 1975, the evidence consisted solely of the testimony of the plaintiffs. When a problem arose in scheduling the testimony of a medical witness, consideration was given to bifurcating the trial, but no decision was reached.

Instead, it was agreed that since the only additional evidence would relate to damages, the court should entertain at that time motions of the defendants for directed verdicts on the question of liability. The motions were made and argued. Both were granted. In considering the motions it was the duty of the trial judge, with respect to any issue, to look upon all credible evidence, together with all inferences fairly deducible therefrom, in a light most favorable to the parties against whom the motions were made, and to determine whether the whole rose above the level of speculation, conjecture, or mere possibility, and was sufficient to require submission of the issue to the jury.

Plitt v. Greenberg, 242 Md. 359, 367-68 , 219 A. 2d 237 (1966); Buchanan v. Galliher, 11 Md. App. 83, 87-88 , 272 A. 2d 814 (1971). We summarize, and to some extent paraphrase, Judge McAuliffe’s oral ruling on the motions: There is no evidence of record to involve the defendant Sterling Drug, Inc. in any manner in this case, and the motion must be granted as to that defendant. Even if that were not so, there is no sufficient evidence of negligence by the manufacturer, and no evidence that any applicable warranty was not met at the time the article left the control of the supplier and passed into the control of the retailer. The evidence is not sufficient to identify the defendant Consumer’s Discount Supermarket, Inc. as the retailer.

The only portion of the plaintiff’s ⁴⁴⁷ testimony which dealt with the identification of the store was her statement that she was “In the Co-op on Georgia Avenue, Wheaton, Maryland.” There was no proof that the store was in any manner owned or leased or controlled by Consumer’s Discount Supermarket, Inc., a corporation, or, in fact, that such corporation ever existed. 1 Even if the problem of identity had been surmounted the motion would have to be granted as to this defendant as well. The evidence does not permit the plaintiffs to invoke the doctrine of res ipsa loquitur to show negligence. The seller’s implied warranty does not extend to the container. Appellants contend on appeal that the evidence established a prima facie case of identity of Consumer’s Discount Supermarket, Inc.; that a product label offered in evidence but not admitted would prove the identity of the manufacturer of the product; that the evidence established a prima facie case of negligence; and that the statutory implied warranty extends to product packaging.

Identification of the Manufacturer We readily affirm the judgment in favor of appellee Sterling Drug, Inc. There was no reference whatever in the evidence to that party by any name, correct or incorrect, and indeed no reference to any person or entity as manufacturer or distributor of the product. For all the evidence tells us, the “Co-op” may have concocted the preparation on its own premises. As the trial judge commented: “That it may have been the subject of proof by way of reading into the record Answers to Interrogatories or by way of pretrial motion or ⁴⁴⁸ request for admission of facts, is not now before me. I pass only on the evidence of record.” 2 It is argued here that the evidence would have been sufficient to prove that Sterling Drug, Inc. manufactured Lysol, had not the trial judge erred in refusing to admit in evidence several boxes or cartons which were marked for identification, but were not admitted in evidence.

They were described as boxes of Lysol purchased months later, either at the same store or elsewhere. At least some of them were offered as tending “to prove a course of conduct”, presumably because the cartons appeared “to be opened at the top and sliced in various ways”. Objections to their admission in evidence were sustained. Although the transcript and the exhibit list show that they were marked for identification, the cartons were not included in the record sent to this Court. 3 The exhibits were not offered to show the name of the manufacturer.

We can only guess that a manufacturer’s name might have been shown on the carton. The rulings on the admissibility of the exhibits, as offered, were correct. Identification of the Retailer Whether there was evidence sufficient to show, or permit a rational inference, that the other defendant named in the pleadings, Consumer’s Discount Supermarket, Inc., was the retailer involved in the described transaction, is a more difficult question. In arriving at the answer we must keep in mind that the question is not whether a sale was made to Mrs. Undeck.

The evidence was clearly sufficient to show that there was a sale, Sheeskin v. Giant Food, Inc., 20 Md. App. 611, 626 , 318 A. 2d 874 (1974), aff'd., Giant Food, Inc. v. Wash. Coca-Cola, ⁴⁴⁹ 273 Md. 592 , 332 A. 2d 1 (1975), and that the “store” was the seller. The question is, who was the “store” ? The amended declaration alleged that the seller was Consumer’s Discount Supermarket, Inc. Each of that defendant’s pleas was a general denial.

Pleadings are not evidence. We must look to the evidence to find the answer. The only words used by Mrs. Undeck to name the store were, as the trial judge observed, “the Co-op”. Appellants now contend that other evidence identified the store by name.

They find it in two questions put to her, and say that her answers adopted counsel’s factual assumptions, and made them evidence. The first, after Mrs. Undeck had testified that she purchased Lysol again the next year, was: “Q Did you purchase any from the Consumers Discount store that you were at in September 1971 where your accident occurred? ” and she answered: “A This one was and I think there is another one.” Later the record shows this question by her counsel, and her answer: “Q Returning to the date of September 10, 1971, and the Consumers Discount Supermarket, when you removed the bottle of Lysol from the shelf, as you stated you did, can you describe the display of Lysol products at that time on that shelf on that day? “A No, I couldn’t.” The name, “the Co-op” used by Mrs. Undeck suggests no association whatever with the corporate defendant. The two questions by her counsel which we have quoted above, each in a different degree, may or may not suggest some identification with the corporate defendant. A difficulty with questions of this kind Is that they are objectionable, either as leading or as argumentative, at least to the extent that they include or incorporate by assumption a fact not ⁴⁵⁰ otherwise proved. 3 Wigmore, Evidence, § 771 (Chadbourn rev. 1970) says that this type of question: “ * * * may lead a witness to reply without taking care to specify that his answer is based on that assumption, and may thus commit him to an assertion of the assumed fact, though in fact he may not desire or be able to do so.” McCormick, Evidence (1972 ed.), § 7, characterizes this kind of question not as leading but as argumentative, and objectionable for that reason.

No objections were made, however, to the questions which we have set out above from the transcript in this case. Therefore, they are in the case for whatever probative value they may have, Old v. Cooney Detective Agency, 215 Md. 517, 526 , 138 A. 2d 889 (1958), and to the extent that the answers of the witness adopted as facts the assumptions stated in the questions, those facts are in evidence. We think it is rational to infer that the answer of the witness to the first of the two questions we have quoted above did adopt the facts assumed in the question. The actual question was asked in the first four words, “Did you purchase any * * * ”, and all of the rest, “ * * * from the Consumer’s Discount store that you were at in September 1971 where your accident occurred? ” was, it is true, supplied by the questioner.

But from the sequential arrangement of the question and the assumption, as well as from the responsive nature of the answer, we think that Mrs. Undeck could properly be understood as saying that it was at the Consumer’s Discount store in September, 1971, where her accident occurred. In the second of the two questions and answers we have quoted above, the effect is reversed. The only real inquisitorial part of the question is the very last part, “ * * * can you describe the display of Lysol products at that time on that shelf on that day? ”, to which the witness gave a negative response. The fact-supplying portion of the question was the first part, and may well have been subordinate in the mind of the witness when she answered, ⁴⁵¹ in effect, that she could not describe the display.

Her answer neither adopts nor rejects her questioner’s assumption. Presumably, the answer would be the same, with or without a name for the place where she saw the display. The effect is well expressed in McCormick, Evidence (1972 ed.), § 7, where the author says: “Oftentimes, the question will be so separate from the assumption that if the witness answers the question without mentioning the assumption, it is impossible to ascertain whether he ignored the assumption or affirmed it.” From this analysis of the evidence, we conclude that the view of it most favorable to the plaintiffs is that Mrs. Undeck made her purchase of Lysol at “the Consumer’s Discount store”. The question now is whether that degree of identification in the evidence is sufficient to permit a jury to find that the seller was the defendant Consumer’s Discount Supermarket, Inc. The Court of Appeals held that a plaintiffs evidence was not sufficient to identify by name the defendants being sued, in Vernon v. Aubinoe, 259 Md. 159 , 269 A. 2d 620 (1970).

There the plaintiff sued three individuals as owners of the property upon which she fell because of a defect in the surface, and sustained injuries. There were several references in the testimony to “The Aubinoe Company”, “the Aubinoe people”, a “resident manager”, and to “the construction man”, as well as