author: Eldridge, J.,

text:
    CELESTA J. CARTER v. MICHAEL JUAN CORREA et al.
    [No. 1086,
    September Term, 1974.]

      Decided October 31, 1975.

      The cause was argued before Moylan and Lowe, JJ., and John C. Eldridge, Associate Judge of the Court of Appeals, specially assigned.

      Francis J. Ford for appellant.

      Edward P. Camus, with whom were Camus & Perry, James E. Fannon, Jr., and Hoyer &Fannon on the brief, for appellee Correa. Marvin B. Miller, with whom were Blackwell, Miller, Markey & Hoffman on the brief, for appellee Owen.
   Eldridge, J.,

delivered the opinion of the Court.

This case arises out of an automobile collision between defendants Celesta Carter and Nancy Carol Owen. Nancy Correa, a passenger in the Owen automobile, died of injuries sustained in the accident. Michael Correa, on behalf of himself and the estate of Nancy Correa, and Tamara Correa, by Michael Correa, her father and next friend, brought suit in the Circuit Court for Prince George’s County (Mathias, J.), alleging that both Carter and Owen were negligent. Both defendants filed cross claims alleging that the other was negligent. Owen sought recovery from Carter for her injuries while Carter sought a judgment against Owen for “all or a contributable portion of any judgment” in favor of Correa against him. Jury verdicts, totaling $167,028, were returned against Carter only and in favor of the plaintiff, consisting of $25,000 to Michael Correa individually, $140,000 to Tamara Correa, and $2,028 to Michael Correa as administrator. The plaintiff later agreed to a remittitur in the amount of $50,000 on the verdict in favor of Tamara Correa. The jury also awarded Owen $2,890.45 on her cross claim against Carter. From judgments for these amounts, Carter appeals.

The accident occurred in Prince George’s County, Maryland, on the night of July 1, 1972, at or near the intersection of Piscataway Road and Temple Hills Road. Temple Hills Road, which is controlled by a stop sign and is the unfavored road, begins at this intersection and runs north from Piscataway Road. It is undisputed that Carter was driving west on Piscataway Road at the time of the accident. However, few other pertinent facts concerning the accident, including the direction in which the Owen car was traveling, are known with any degree of certainty.

Officer Theodore Cox of the Prince George’s Police Department investigated the accident. He testified that when he arrived at the accident scene the fire department had already washed the road of all debris 50 feet on either side of the intersection. Cox did observe that the Carter automobile, a Plymouth, was in the westbound lane of Piscataway Road 100 feet west of the intersection and was overturned. The Owen car, a Volkswagen, was upright but off the road approximately 100 feet west of the intersection and 15 feet from the northern edge of Piscataway Road. Cox was unable to find any witnesses at the scene.

After Owen, Correa, and Carter had been taken to a local hospital by ambulance, Officer Cox interviewed Carter about the accident. Carter told Cox that he had been traveling west on Piscataway Road at 45 to 50 miles per hour when he saw headlights from the side street to his right just prior to the collision. According to Cox, this was all Carter could remember of the accident. Cox also testified that at the hospital Carter was “loud and boisterous” and that there was a “smell of alcohol about his person.”

Officer Cox interviewed Mrs. Owen the next day, but she could recall no details of the aeeident, ineluding the direction in which she was driving. At the conclusion of his investigation, Cox filed an aeeident report whieh indicated that Mrs. Owen had been making a left turn from Temple Hills Road onto Piscataway Road. On cross-examination he said that this was his conclusion based on Carter’s statement at the hospital that he had seen headlights approaching from the right and based on Cox’s examination of tire marks in the grass adjacent to Piscataway Road and 100 feet from the intersection.

James Landis was the only eyewitness other than Carter or Owen who testified. Landis was a passenger in a car traveling east on Piscataway Road and driven by one Chuck Woods. Attempts to locate Woods, who refused to stop at the accident scene, were unsuccessful. Landis testified that when he was approximately 200 feet west of the intersection he saw the Owen automobile enter the intersection from Temple Hills Road and turn left onto the east lane of Piscataway Road. According to Landis, Owen’s Volkswagen had completely entered the east lane when the Plymouth driven by Carter, traveling at 70 to 80 miles per hour, came around a curve, crossed the center line, and collided with the Volkswagen. Landis testified that the collision occurred completely in the east lane of Piscataway Road. He indicated on a drawing of the intersection that the point of impact was just inside the intersection.

When, during cross-examination by counsel for Owen, Landis was asked how far the Volkswagen had traveled before the collision had occurred, he stated that he did not know. Landis was then shown a signed written statement and was asked to verify that it was his. After verification, Landis read a portion of the statement which said that the Volkswagen had straightened up in its lane and traveled 15 feet before it was hit in the eastbound lane. Two days later, at the beginning of the presentation of her case, Owen was allowed to introduce the entire statement into evidence over Carter’s objection.

Celesta Carter testified that on the night of the accident he had been playing softball at a field near the intersection. After the game Carter drank five or six beers in a period of approximately three hours. Immediately thereafter he proceeded home, traveling west on Piscataway Road. He recalled that just prior to the collision he had entered a curve and slowed down from 40 to 30 miles per hour when he saw headlights from the eastbound lane of Piscataway Road angling into his lane. He stated that he slowed down further and moved partially onto the shoulder of the westbound lane. At this point, according to his testimony, the collision occurred. Pie believed that the impact had occurred in the west lane of Piscataway Road and that the car whose headlights he had seen had been in the east lane of Piscataway Road just prior to the collision. He did not know whether he had passed the intersection at the time of impact, and he therefore could not state whether or not there was a car on Temple Hills Road or whether a car was making a turn from Temple Plills Road. Carter disputed both Landis’s and Cox’s testimony that he was exceeding 40 miles per hour, claiming that at no time did he exceed 40 miles per hour. He also challenged Cox’s testimony that he was loud or boisterous at the hospital and disputed any implication that he may have been intoxicated. He explained that he was only protesting the lack of attention at the hospital, and he insisted that he was sober on the night of the accident.

Nancy Owen contradicted Landis’s testimony that she had made a left turn from Temple Hills Road onto Piscataway Road. She testified that she and Mrs. Correa had just left her apartment en route to Washington. Although she had no memory of the accident itself, she believed that she was traveling east on Piscataway Road and would have been making a left turn into the northbound lane of Temple Hills Road as this was her normal route to Washington. She further indicated that even if she had been turning from Temple Hills Road onto Piscataway Road, she would have been making a right turn rather than a left turn. She based this belief on the fact that she lived west of Temple Hills Road and had no reason that evening to go east on Piscataway Road past the intersection. When she learned that the accident report showed that she was making a left turn onto Piscataway Road, she contacted Officer Cox and requested that he change the report to show that she had been making a left turn onto Temple Hills Road, but Officer Cox refused to make the change.

It can readily be seen that the testimony in this case suggested several conflicting versions of how the collision occurred. Moreover, adding to this uncertainty was the evidence concerning the position of the automobiles after the accident which seems to be inconsistent with most, if not all, of these versions.

(1)

On this appeal, Carter contends that the trial judge erred in not granting his motion for a directed verdict in his favor on Correa’s original claim and on both cross claims, and in submitting the case to the jury. He argues that the evidence clearly established that Mrs. Owen entered a favored road, Piscataway Road, from an unfavored road, Temple Hills Road, thus making the boulevard rule applicable. Carter’s theory is that since the boulevard rule was applicable, Mrs. Owen was negligent as a matter of law, precluding any recovery from Carter.

In ruling on a motion for a directed verdict or a motion for judgment n.o.v., the trial court must consider all credible evidence and inferences fairly deducible therefrom in a manner most favorable to the party against whom the motion is made. Moran v. Faberge, 273 Md. 538, 540, 332 A. 2d 11 (1975); Greyhound Lines, Inc. v. Alderson, 26 Md. App. 277, 283, 336 A. 2d 811, cert. denied, 275 Md. 749 (1975); Tippett v. Quade, 19 Md. App. 49, 56, 309 A. 2d 481 (1973). In light of the evidence showing various versions of the accident, we believe that the jury could reasonably find that the boulevard rule was not applicable. Based upon Landis’s testimony, and in the absence of evidence as to the point of impact, the jury could conclude that Mrs. Owen had successfully cleared the intersection, entered her own lane, and reached a point where she did not interfere with the favored driver. Under these circumstances, the boulevard .rule would cease to be applicable. Quinn Freight Lines v. Woods, 266 Md. 381, 387, 292 A. 2d 669 (1972); Grue v. Collins, 237 Md. 150, 157, 205 A. 2d 260 (1964); Roberts v. Fairchild, 14 Md. App. 612, 617, 287 A. 2d 778 (1972); Kowalewski v. Carter, 11 Md. App. 182, 189, 273 A. 2d 212 (1971). In the alternative, in light of physical evidence indicating that the two cars had collided from left front to left front, and Mrs. Owen’s testimony that her normal route to Washington would require making a left turn from Piscataway Road onto Temple Hills Road, coupled with Carter’s testimony that he saw lights on his left angling towards his lane, the jury could conclude that Mrs. Owen was herself traveling on the favored road. There was sufficient evidence, therefore, to find that the boulevard rule was not applicable. The trial judge properly submitted this issue to the jury. See Kowalewski v. Carter, supra, 11 Md. App. at 189-190.

Moreover, even if the boulevard rule would have been applicable as a matter of law, the motion for a directed verdict in favor of Carter on the original claim by Correa would have been properly denied although Carter would have been entitled to a directed verdict exonerating him from liability to Owen on her cross claim. In an action where the boulevard rule is applicable, the unfavored driver is negligent as a matter of law. If the plaintiff is the unfavored driver, the action is defeated unless the doctrine of last clear chance is applicable. Hensel v. Beckward, 273 Md. 426, 431, 330 A. 2d 196 (1974); Creaser v. Owens, 267 Md. 238, 245, 297 A. 2d 235 (1972). And if the unfavored driver is the defendant, he is liable unless it is established that the favored driver was guilty of contributory negligence which was the proximate cause of the accident. Creaser v. Owens, supra, 267 Md. at 245; Brown v. Ellis, 236 Md. 487, 494, 204 A. 2d 526 (1964). But where the plaintiff is a passenger in the unfavored driver’s vehicle, the negligence of the unfavored driver is not imputed to the passenger. The passenger would be entitled to recover from both drivers upon proving that both were negligent and that such negligence proximately caused the accident. Shedlock v. Marshall, 186 Md. 218, 237, 46 A. 2d 349 (1946); see also Harper v. Higgs, 225 Md. 24, 169 A. 2d 661 (1961). Cf. Greyhound Lines, Inc. v. Alderson, supra, 26 Md. App. at 285-288. The evidence of Carter’s excessive speed and crossing the center line would have been sufficient to find that he was negligent. It would therefore have been proper for the jury to determine whether his negligence was a proximate cause of the accident, and if so, to allow recovery on Correa’s claim and to deny Carter recovery on the cross claim.

(2)

Carter also argues that the trial court’s instruction to the jury on the boulevard rule was erroneous and that a subsequent instruction correcting the error did not cure the prejudice.

The jury was instructed that whether it found that Owen was making a left turn from Piscataway Road or whether it found that she proceeded into the intersection from the stop sign on Temple Hills Road, she had a duty to yield the right of way to Carter. Moreover, the jury was told that if it found that the collision had occurred within the intersection, it must find, as a matter of law, that Owen was negligent, and return a verdict in favor of Carter on the Owen cross claim. The trial judge then stated that his instructions were subject to several provisions of the Motor Vehicle Code, including the duty to drive on the right half of the roadway, the duty to operate a vehicle at a safe and prudent speed not in excess of posted limits, the duty to refrain from operating a vehicle in wanton or willful disregard for the safety of persons or property, the duty to yield the right of way when making a left turn, and the duty to stop in obedience to stop signs. Carter excepted to the instruction on the ground that the duty to yield the right of way when proceeding from a stop sign or when making a left turn was not limited by any duty imposed on the favored driver by the Motor Vehicle Code. The trial judge agreed with Carter and thereafter instructed the jury that the duty to yield in both circumstances was not limited by any provisions of the Motor Vehicle Code which he had read.

It is apparent that the instruction referring to the code provisions was intended to inform the jury concerning the duties of both drivers under all possible circumstances presented by the evidence, including the possibility that the jury would find that Owen was proceeding in the eastbound lane of Piscataway Road and was not attempting a turn. A jury instruction must be viewed in the context of the testimony and the instructions which preceded it. Friel v. Freeland, 231 Md. 27, 32, 188 A. 2d 340 (1963). The code provisions read to the jury indicated the duties of Carter if it found that Owen did not have the duty to yield the right of way at the time of the collision, as well as the duties of Owen if it were found that she was making a turn. While the instruction may not have been as explicit as possible, it presented the issues fairly to the jury and hence does not constitute reversible error. See Guth v. Elliott, 158 Md. 243, 252-253, 148 A. 216 (1930). Furthermore, Carter excepted to the instruction and the trial judge corrected the alleged error by the subsequent instruction clarifying the fact that the boulevard rule is not limited by any other code provision. “The purpose of requiring the objection to any part of the charge to be presented to the trial judge before the jury retires is to give the trial judge an opportunity to amend or supplement his charge if he deems an amendment necessary.” State v. Wooleyhan Transport Co., 192 Md. 686, 689-690, 65 A. 2d 321 (1949). See Kraft v. Freedman, 15 Md. App. 187, 289 A. 2d 614 (1972). An error in a previous instruction may be corrected by a subsequent instruction. Ghiradello v. Malina, 238 Md. 498, 510, 209 A. 2d 564 (1965); Safeway Trails, Inc. v. Smith, 222 Md. 206, 213, 159 A. 2d 823 (1960).

(3)

Carter challenges the admission into evidence of Landis’s written statement in its entirety. He argued below and argues on appeal that only the portion of the statement which was actually read by Landis, and which relates to the distance the Owen automobile had traveled before the accident occurred,, was admissible. The remainder, he contends, was inadmissible as both hearsay and opinion evidence.

Landis’s written statement was a description of the collision which he had observed. It differed from his trial testimony only to the extent of the possible discrepancy between Landis’s indication at trial that the collision took place just within the intersection and his' assertion in the written statement that the Owen automobile had traveled 15 feet after completely entering the eastbound lane of Piscataway Road. But. the remainder of the statement, the admission of which was the basis of Carter’s objection, is to the same effect as his testimony concerning the accident. Even assuming, without deciding, that the remainder of the statement was. not within any exception to the hearsay rule, and thus improperly admitted, we can find no prejudice to Carter. The previous admission of Landis’s testimony without objection on the same matters contained in the written statement rendered any error non-prejudicial. See S & S Bldg. Corp. v. Fidelity Storage, 270 Md. 184, 190, 310 A. 2d 778 (1973); Hartsock v. Strong, 21 Md. App. 110, 120, 318 A. 2d 237 (1974).

Carter’s contention that the statement contained Landis’s opinion as to who was responsible for the accident and was therefore inadmissible as opinion evidence, is not properly before us. Although under Maryland Rule 522 d 1 a party need not state the reason for his objection to the admission of evidence, if requested to do so by the trial court he must state all reasons for the objection. Any reasons not so stated are deemed to be waived on appeal. Wilt v. Wilt, 242 Md. 129, 133-134, 218 A. 2d 180 (1966); Ross v. State, 24 Md. App. 246, 258-259, 330 A. 2d 507 (1975). The trial court asked to hear argument on the question of the admissibility of Landis’s statement. The only reason given by Carter for his objection was that it was hearsay. Consequently, Carter waived any objection which he may have had based on the theory that the document contained opinion evidence.

(4)

Carter’s final contention concerns the matter of his drinking prior to the accident. The trial judge instructed the jury that a violation of the motor vehicle laws is evidence of negligence if the violation is a proximate cause of the accident. At the conclusion of the instructions, the trial judge read to the jury Gode (1957, 1970 Repl. Vol.), Art. 66V2, § 11-902 (b), which provides that it is unlawful to drive while one’s ability is impaired by the consumption of alcohol. Carter does not argue before us that the instruction incorrectly stated the law. Irstead, he claims that there was insufficient evidence that his ability to drive was impaired to submit the issue to the jury.

In support of his contention, Carter relies on Alston v. Forsythe, 226 Md. 121, 172 A. 2d 474 (1961). In that case the Court of Appeals held that evidence that the driver had consumed six bottles of beer in a period of five and one-half hours before the accident was an insufficient basis for instructing the jury that it could consider, as evidence of negligence, a violation of the then existing statute prohibiting driving while under the influence of alcohol, Code (1957), Art. 661/2, § 206. The Court defined a violation of that statute as “ ‘drinking to the extent of probably affecting one’s judgment and discretion or probably affecting one’s nervous system to the extent that there is a failure of normal coordination’ ” or the “appreciable” loss of “normal control of . . . bodily and mental faculties.” The Court said that evidence of this condition could be found in the manner of operation of the automobile by the alleged violator or in his actions or demeanor after the accident, although such evidence was deemed to be lacking in that particular case. Alston, supra, 226 Md. at 132. In the instant case, however, such evidence was not lacking. Landis testified that Carter drove his car around a curve at 70 to 80 miles per hour and crossed the center line. Officer Cox testified that Carter “smelled of alcohol,” a fact verified by Carter’s admission that he had been drinking shortly before the accident, and that Carter was “loud and boisterous” at the hospital. While we do not hold that this evidence necessarily established that Carter was driving in violation of § 11-902 (b), we do. believe that it, together with Carter’s explanation of his conduct and assertion of sobriety, was a question of fact properly presented to the jury.

We also note that the tests enumerated in Alston were applicable to former § 206 of Art. 661/2, which set forth a more serious offense than that established by the present impaired driving statute, § 11-902 (b) of Art. 661/2. As the evidence in this case would seem to be sufficient to constitute a violation of former § 206, it is clear that it is sufficient to constitute a violation of present § 11-902 (b). See also Singleton v. Roman, 195 Md. 241, 72 A. 2d 705 (1950).

Judgments affirmed.

Appellant to pay costs.

      . The present statute setting forth the more serious offense is § 11-902 (a) of Art. 661/2, making it unlawful to drive while in an intoxicated condition.


source: Caselaw Access Project

author: Orth, C. J.,

license: Public Domain

text:
    DONALD EDWARD MOANEY v. STATE OF MARYLAND
    [No. 182,
    September Term, 1975.]

      Decided October 31, 1975.

      The cause was argued before Orth, C. J., and Menchine and Moore, JJ.

      Gerald A. Kroop, Assigned Public Defender, for appellant.

      Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Floyd Pond, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

We are called upon in this appeal to determine whether a person shall be held to answer in a court of this State for a felonious crime unless on an indictment of a grand jury.

STATEMENT OF THE CASE

On 18 March 1975, at a bench trial in the Criminal Court of Baltimore, DONALD EDWARD MOANEY was convicted of committing the crime of grand larceny on 13 January 1975 and sentenced to one year. The trial came about in this manner. The offense was charged in a statement of charges made out by the arresting officer and filed in the District Court of Maryland. When the case came on in usual course in the District Court, Moaney demanded a jury trial, depriving the District Court of jurisdiction and placing the cause within the jurisdiction of the Criminal Court of Baltimore. Courts Art. § 4-302 (d). The matter was not presented to the grand jury for action, nor did the State’s Attorney file an information. The case came to trial on the statement of charges. Moaney pleaded not guilty and elected trial by the court. The court observed that “there is no allegation of an amount in the statement of charges.” In that part of the statement of charges narrating the information or observations upon which Moaney was arrested, the value of the goods stolen was stated to be $375. That part of the charging document setting out the formal charge, however, omitted the value of the goods. It was stipulated that the value was $375 and the charging document was amended accordingly with the approval of Moaney. Whereupon defense counsel observed: “Your Honor, I think perhaps at this time we also would have to waive an indictment on this.” The transcript reads:

“THE COURT: The statement of charges under the rule can be handled here.
MR. KROOP [Defense Counsel]: I understand that. I have no objection to that but it is over $100.00 which raises it into a felony class.
THE COURT: Preserve that point, I may agree.
MR. KROOP: Very well. Then the defense is not waiving its right to challenge the fact that the State has no right under a statement of charges to bring a felony against my client. You overrule the objection.
THE COURT: I overrule the objection for the record.”

The point was not further discussed. Trial proceeded on a statement of facts presented by the State and accepted by Moaney. A motion for judgment of acquittal was made and denied. The defense rested. The court rendered a verdict of guilty and imposed sentence. See note 1, supra. Moaney promptly appealed.

On appeal Moaney concedes that there was legally sufficient evidence to sustain his conviction, and indeed, the corpus delicti of the offense and Moaney’s criminal agency were clearly established by the undisputed statement of facts. As his sole contention, Moaney renews his attack on the statement of charges. He puts it this way:

“That although Article 27, Section 340 undertakes to confer jurisdiction of larcenies under $500.00 in the District Courts of Baltimore City, larceny of the value of $100.00 or upwards is a felony for which at Common Law one can only be prosecuted by indictment in the absence of an affirmative waiver of his right to be indicted by the grand jury.”

Moaney’s argument goes thus. Grand larceny is a felony. At the common law a felony could be tried only upon an indictment returned by a grand jury. He then turns to Code, art. 51, § 1, asserting that it is a clear declaration of the common law right to a grand jury upon accusation of an indictable offense. He recognizes that the common law right has been tempered by Maryland Rules 708, 709 and 710, but urges that, in the circumstances, these Rules do not permit him to be tried on a statement of charges. He concludes that, in Maryland, “any accused charged with a felony is entitled to grand jury indictment” unless affirmatively waived.

THE LAW

In this jurisdiction, larceny is a crime under the common law, and when the value of the goods stolen is to the value of $100 or more, it is a felony, and, thus, an infamous crime. Code, art. 27, § 340; Farlow v. State, 9 Md. App. 515 (1970). See Mackin v. United States, 117 U. S. 348 (1886). And, in this jurisdiction, there is no specific constitutional right to indictment by a grand jury. As to the federal constitution, the clause of Amendment V to the Constitution of the United States which provides that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury . . .” does not apply to the states. Fabian v. State, 3 Md. App. 270, 283 (1968), citing Heath v. State, 198 Md. 455 (1951). As to the Maryland constitution, we said in Fabian, at 282-283: “ ‘[Tjhere is no provision of the Maryland Constitution requiring an indictment in any case. Article 21 of the Declaration of Rights merely requires that an accused ‘hath a right to be informed of the accusation against him; to have a copy of the Indictment, or Charge in due time (if required) to prepare for his defense.’ State, ex rel. Butler v. Warden, 195 Md. 713, 714.’ ” In art. 5, however, of the Declaration of Rights of the Constitution of Maryland, the People declared “That the Inhabitants of Maryland are entitled to the Common Law of England. . . .” At the common law “whenever any ‘felonious’ offense is charged, the same requires that the accusation be warranted by the oath of twelve men, before the party shall be put to answer it.” 4 W. Blackstone, Commentaries *310. See C. Moylan, The Historical Intertwining of Maryland’s Burglary and Larceny Laws or the Singular Adventure of the Misunderstood Indictment Clerk, 4 U. Balto. L. Rev. 28, 35 (1974). Thus, by the common law, it appears that a person accused of grand larceny is entitled to be tried upon an indictment returned by a grand jury. As we have indicated, Moaney asserts that this common law right is declared by statute to be the general policy of Maryland. His argument is clouded by his failure to keep abreast of statutory changes by way of repeal and amendment. He refers to Code, art. 51, § 1, as providing:

“Whenever a person is accused of an indictable criminal offense under the laws of this State, he shall have the right to a grand jury selected at random from a fair cross section of the citizens of this State resident in the county in which the court convenes or in Baltimore City if the court convenes therein.”

This may be reflective of the common law, but it was repealed by Acts 1973, 1st Sp. Sess., ch. 2, § 2, effective 1 January 1974. It reappears as Courts Art. § 8-102 (a), which was amended by Acts 1974, ch. 691, § 8, effective 1 July 1974, with significant change. It now reads:

“When a litigant in a court of the State is entitled to trial by a petit jury and when a person accused of a criminal offense is presented to a grand jury, the jury shall be selected at random from a fair cross section of the citizens of the state who reside in the county where the court convenes.”

Thus, the “Declaration of policy”, as the section is subtitled, under Title 8, “Juries”, is no longer expressed in terms of “having the right to a grand jury” upon accusation of “an indictable criminal offense.” (emphasis added) Rather, now, it is when “a person accused of a criminal offense is presented to a grand jury” that he is entitled to a jury selected at random, (emphasis added) Whatever the intent and effect of art. 51, § 1 may have been, it is clear that as reworded for clarification in Courts Art. § 8-102 (a), see Revisor’s note, the declaration no longer applies to all “indictable” offenses, but applies only when a person is “presented” to a grand jury. There is no obligation imposed to so present and no “right” to a grand jury contemplated. Whatever may have been the effect of the statute before, we believe that as amended, considered in the frame of reference of the Title, “Juries”, under which it appears, that it cannot now be construed, as Moaney would like, to declare that whenever a person is accused of an indictable criminal offense under the laws of this State, he shall have the right to a grand jury. All it says is that it is the policy of this State that the grand jury shall be selected at random from a fair cross section of the citizens of this State who reside in the county where the court convenes, when a person accused of a criminal offense is presented to it.

Common law rights may be changed by legislative enactment, judicial opinion, and rules of court. Lutz v. State, 167 Md. 12 (1934); Basta v. State, 133 Md. 568 (1919); Dill v. State, 24 Md. App. 695 (1975). We look to see if there has been change in this jurisdiction with respect to the common law right to indictment. That there has been change is manifest. Acts 1973, ch. 840, added § 592 to art. 27, effective 1 July 1973, and Acts 1973, 1st Sp. Sess., ch. 2, § 7A, effective 1 January 1974 amended it. As enacted and amended it authorizes the State’s Attorney, “[i]n all cases involving a felony, other than a felony within the jurisdiction of the District Court,” under certain conditions involving a preliminary hearing, to charge by information. Clearly such right to charge by indictment as existed at the common law was abrogated. Whether to seek indictment or to charge by information is now at the election of the State’s Attorney with the conditions specified. The common law right has also been changed by amendment to the Maryland Rules. Formerly, Rule 708 provided that a person charged with the commission of a felony may not be prosecuted upon an information except pursuant to Rule 709 (Immediate Trial). It was amended 1 October 1973 to conform with art. 27, § 592:

“A person charged with the commission of a felony may be prosecuted upon an information filed by the State’s Attorney after a preliminary hearing has been held and probable cause to hold the accused has been found or after such preliminary hearing has been waived.”

The abrogation of the common law right to indictment is clearly shown by the amendments to Rule 709. Section a of that Rule formerly read:

“An accused, including an accused who has prayed a jury trial before a trial magistrate, or who has appealed from a conviction before a trial magistrate, may file with the clerk a petition signed by the accused setting forth that there is a criminal charge pending against him, that he desires to waive his right to action by the grand jury, or that a jury trial was prayed before the trial magistrate, or that the hearing before the magistrate resulted in conviction and appeal, as the case may be, and that he seeks an immediate trial.”

As amended, effective 1 June 1972 and 1 October 1973, to reflect the creation of the District Court and the provisions of art. 27, § 592, it states:

“An accused may file with the clerk a petition signed by him setting forth that there is a criminal charge pending against him, that he desires to waive any right he may have to action by the grand jury, or that a jury trial was prayed in the District Court, or that the trial in the District Court resulted in conviction and appeal, as the case may be, and that he seeks an immediate trial.”

We note that “he desires to waive his right to action by the grand jury” is replaced by “he desires to waive any right he may have to action by the grand jury.” (emphasis added).

Former § b of Rule 709 provided:

“Upon the filing of a petition pursuant to this Rule, the State’s Attorney shall immediately file an information against the accused except when an accused has prayed a jury trial in the District Court or has appealed from a judgment of the District Court, in either of which event the accused shall be tried upon the charging document.”

Both former § b and present § b of Rule 709 enable trial in a circuit court without indictment by providing for the filing of an information.

What we have discussed thus far indicates that a felony may be prosecuted in certain circumstances on an information rather than an indictment. But may it be prosecuted on some charging document other than an information or indictment? Rule 709 shows that it may. Section a permits an accused to seek an immediate trial not only upon waiver of any right to action by the grand jury, but also when a jury trial was prayed in the District Court or when trial in the District Court resulted in conviction and appeal. Section b expressly provides that neither indictment nor information are required when an accused has (1) prayed a jury trial in the District Court, or (2) appealed from a judgment in the District Court. In either of those events, “the accused shall be tried upon the charging document.” This leads our inquiry to the District Court.

We first observe that the provision of art. 27, § 340, referred to by Moaney in the question he presents on appeal, which, in his words, “undertakes to confer jurisdiction of larcenies under $500 in the District Courts of Baltimore City”, is not now existent. Section 340, as formerly in effect, after making the common law offense of larceny a felony when the value of the goods stolen was $100 or upwards, and after fixing the penalty upon conviction, provided:

“In Baltimore City and Anne Arundel County where the amount of money or the value of the thing taken does not exceed five hundred dollars ($500.00) the Municipal Court of Baltimore City and People’s Court of Anne Arundel County shall have jurisdiction to try persons charged with violating this section, provided that persons so convicted in the Municipal Court or People’s Court of Anne Arundel County shall not be sentenced to the penitentiary by those courts.”

That provision, however, was eliminated when the section was amended by Acts 1974, ch. 553, effective 1 July 1974. The section, in its entirety, now reads:

“Every person convicted of the crime of larceny to the value of one hundred dollars or upwards, or as accessory before the fact shall be deemed guilty of a felony, and shall restore the money, goods or things, taken to the owner, or shall pay him the full value thereof, and shall be fined not more than $1,000 or be imprisoned for not more than 15 years, or be both fined and imprisoned in the discretion of the court.”

The jurisdiction of the District Court is elsewhere. It is spelled out in Title 4 of the Courts and Judicial Proceedings article. For the purpose of decision here, we are concerned only with those provisions relating to felonies. Generally, “the District Court does not have jurisdiction to try a criminal case charging the commission of a felony.” Courts’ Art. § 4-302 (a). Exceptions, however, are set out in § 4-301. Under subsection (2) of § 4-301, the District Court has exclusive original jurisdiction in a criminal cáse in which a person at least 18 years old is charged with crimes under certain specified sections of art. 27 of the Code, “whether a felony or misdemeanor, if the amount of money or the value of the thing taken, stolen, received, converted, or shoplifted does not exceed $500. . . .” One of the sections specified is “Section 340 (Larceny).” As larceny, under § 340, to the value of $100 or upwards is a felony, that felony is within the exclusive original jurisdiction of the District Court where the value of the thing stolen does not exceed $500 and the accused is at least 18 years old. In such event, the felonious larceny is to be tried in the appropriate District Court, unless that court is deprived of jurisdiction. Procedure in the District Court is governed by the Maryland District Rules. “They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.” M.D.R. 701.

Prosecution in the District Court is not by way of indictment. M.D.R. 725, § a, states: “Pleadings in a criminal proceeding shall be the charging document; the pleas of not guilty, not guilty by reason of insanity as provided by statute, guilty, or nolo contendere; the motion to dismiss, and the motion to grant appropriate relief.” No distinction is made between felonies and misdemeanors. “ ‘Charging document’ means arrest warrant, summons to a defendant, statement of charges, citation, or criminal information.” M.D.R. 702, § a. Indictment is not included. We find it clear that with respect to a felony within the exclusive original jurisdiction of the District Court, the common law right to be tried under indictment has been abrogated by the adoption of the Maryland District Rules by the Court of Appeals. We also find it clear that a person accused of the commission of a.felony which is within the exclusive original jurisdiction of the District Court may be tried therein on an information or a warrant or a summons or a statement of charges, duly issued. See M.D.R. 706; Wilson v. State, 21 Md. App. 557, 568 (1974). There is no constitutional or statutory or common law right to be tried on an information, or any other “charging document” as defined, and an accused has no right per se to be tried on a particular charging document. Greathouse v. State, 5 Md. App. 675, 685 (1969). We note that M.D.R. 706, § c 5, dealing with the issuance of a criminal information, does not require that an information be filed. It merely provides for the issuance of a warrant or summons when a criminal information has been filed by the State’s Attorney. We also note that upon a preliminary hearing, “If the court finds that there is probable cause to believe that the defendant has committed an offense or offenses permitting trial in the District Court, it may proceed with or schedule for trial all pending charges for such offenses, but it may grant the State’s Attorney, upon his request, leave to file an appropriate charging document in the District Court. . . .” M.D.R. 741, § d.

Our determination that a person accused of the commission of a felony within the exclusive original jurisdiction of the District Court may be tried therein on a criminal information, warrant, summons, or statement of charges is not dispositive of this appeal. The further question is whether he may be tried under such a charging document in the circuit court to which the case is transferred when the District Court is divested of jurisdiction by demand for a jury trial, Courts Art. § 4-302 (d) or on appeal from a judgment of the District Court, Courts Art. § 12-401 and 12-403.

As we have indicated, when a person has a criminal charge pending against him he may seek an immediate trial when he waives any right to grand jury action or when he has prayed a jury trial in the District Court or when he appeals a judgment entered in that court. Rule 709 a. When he petitions for an immediate trial in the circuit court after a demand for a jury trial in the District Court or on appeal from the District Court, he shall be tried in the circuit court “upon the charging document.” Rule 709 b. The intent is explicit when the accused seeks an immediate trial. We believe the same intent to be implicit on trial in the circuit court upon demand for a jury trial in the District Court or upon appeal therefrom. We find it clear that the legislative scheme in the creation of the District Court, as implemented by the Maryland Rules and the Maryland District Rules, was that a felony within the exclusive original jurisdiction of the District Court may be prosecuted in the District Court, and in a circuit court when it obtains jurisdiction, upon the document charging the offense filed in the District Court. This may be done without need for the State to seek action by the grand jury or to file a criminal information, and without the necessity of an affirmative waiver by the accused. Such procedure is not constitutionally proscribed, and is, as we think manifest, contemplated by statute and rule. In construing a statutory scheme, the object is to give effect to the intention of the legislature as expressed by the act as a whole and to harmonize all parts of the statute to make them consistent, to the extent possible, with the general scope and purposes of the legislation. Coerper v. Comptroller, 265 Md. 3 (1972). We have so construed the statutory scheme here, and think that the conclusion we have reached secures simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.

We find that Moaney was properly tried in the Criminal Court of Baltimore on the statement of charges charging the crime of grand larceny of goods not exceeding the value of $500. We hold that the trial court did not err in overruling the objection of Moaney to being so tried.

Judgments affirmed; case remanded for correction of docket entry of 18 March 1975, warrant docket, 1975, January Term, No. U 7500673, to show correct sentence imposed.

      . At the same trial Moaney was tried and convicted of a misdemeanor, shoplifting, the value of the goods stolen being less than $100. A six month consecutive sentence was imposed. The appeal noted included both judgments, but as briefed and argued before us only the judgment of conviction and sentence with respect to the grand larceny was challenged. We shall, therefore, affirm the judgment as to the shoplifting offense without further ado. We note, however, that although the transcript of the proceedings at the penalty stage of the trial shows that the sentence imposed on the shoplifting conviction was 6 months, the docket entry in Warrant Docket 1975, January Term, Number 47500673, reads that the sentence was 6 years. A copy of the commitment is not included in the record before us, so we do not know how it reads.
      We observe that § 551A of art. 27, which as to Baltimore City, grants jurisdiction in “the Municipal Court of Baltimore City where the value of the thing stolen does not exceed $500. The Section has not been amended to reflect the creation of the District Court of Maryland. Compare Code, art. 27, § 340, as amended by Acts 1974, ch. 553.

      . It was docketed in the Criminal Court of Baltimore on the Warrant Docket 1975, January Term, Number 47500745.

      . It appears that a stet was entered as to other charges pending. The record before us does not reflect the nature of these charges.

      . The Maryland Rules and Maryland District Rules have the force of law. Hauver v. Dorsey, 228 Md. 499 (1962); Sweeney v. State, 6 Md. App. 431, 437, n. 5(1969).

      . The former § 592 of art. 27, was repealed by Acts 1963, ch. 558, § 1, upon the adoption of Rules 707, 709, 710 and 714, which contained similar provisions.

      . Courts Art. § 4-301 designates the exclusive original criminal jurisdiction of the District Court. The Revisor’s note states: “This section combines the basic jurisdictional provisions of Article 26, § 145 (b) (1) and (b) (2) (i), (ii), (iii), and (iv). As this section is new language derived from the aforesaid section, Article 26, § 145 (b) (1) and (b) (2) (i), (ii), (iii), and (iv) are proposed for repeal.” Article 26 was repealed, by Acts 1973, 1st Sp. Sess., ch. 2, § 2, effective 1 January 1974.

      . Another is “Section 551A (Shoplifting).” Subsection (1) bestowed jurisdiction over the commission of a common-law or statutory misdemeanor, and subsections (3), (4) and (5) over certain violations, “if the violation is not a felony.” See Acts 1975, ch. 307, enacting amendments not here material.

      . The dictate of art. 21, Declaration of Rights, Constitution of Maryland, “That in all criminal prosecutions every man hath a right to be informed of the accusation against him; to have a copy of the Indictment or charge in due time (if required) to prepare for his defence; . . .” is completely fulfilled by the Maryland District Rules. See M.D.R. 706, 709, 726, and 741.

      . “ ‘Circuit court’ means the court of general jurisdiction to which an action originating in the District Court may be transmitted for jury trial or appealed and includes the Criminal Court of Baltimore.” M.D.R. 702, § b.


author: Davidson, J.,

text:
    FRANCES McCARTY et vir v. E. J. KORVETTE, INC. et al.
    [No. 1102,
    September Term, 1974.]

      Decided November 3, 1975.

      The cause was argued before Gilbert, Davidson and Moore, JJ.

      J. Hardin Marion, with whom was Thomas A. Baker on the brief, for appellants.

      J. Joseph Curran, Jr., for appellee E. J. Korvette, Inc. E. Charles Dann, Jr., with whom was James D. Peacock on the brief, for appellee Tires, Inc. Phillips L. Goldsborough, III, with whom were John G. Prendergast, Jr., and Smith, Somerville & Case on the brief, for appellee Denman Rubber Manufacturing Co.
   Davidson, J.,

delivered the opinion of the Court.

On 25 February 1971, Frances McCarty bought four tires manufactured by Denman Rubber Manufacturing Co., at Korvettes Tire & Auto Centers, a retail outlet located on Baltimore National Pike, which was allegedly operated, pursuant to a franchise and lease from E. J. Korvette, Inc., by Tires, Inc. On the back side of the invoice given to Mrs. McCarty, under the title “Korvette Tire Centers All-Road-Hazards Tire Guarantee,” the following language appears:

“The tires identified hereon are guaranteed for the number of months (or miles) designated [36,000 miles] against all road hazards including stone bruises, impact bruises, blow out, tread separation, glass cuts and fabric breaks, only when used in normal, non-commercial passenger car service. If a tire fails to give satisfactory service under the terms of this guarantee, return it to the nearest Korvette Tire Center. We will replace the tire charging only the proportionate part of the sale price for each month elapsed (or mileage used) from date of purchase, plus the full federal tax.
“The above guarantee does not cover tires run flat, or simply worn out; tires injured by a fire, collision, vandalism, misalignment or mechanical defects of the vehicle. Radial or surface fissures, discoloration or ordinary repairable punctures, do not render tires unfit for service. Punctures will be repaired free.
“Neither the manufacturer nor Korvette Tire Centers shall be liable for any consequential damage and our liability is limited solely to replacement of the product.” (Emphasis supplied.)

On 14 June 1971, the appellants, Frances McCarty and her husband, Warren McCarty (consumers), were involved in an automobile accident. As a result of an alleged blowout of the right rear tire, their vehicle swerved off the road and turned over several times causing personal injury to each of them as well as property damage to their car. In the Circuit Court for Baltimore County, the consumers sued E. J. Korvette, Inc., Tires, Inc., and Denman Rubber Manufacturing Co., the appellees, for damages resulting from their alleged breach of express and implied warranties and negligence. At the conclusion of the consumers’ case, Judge John Grason Turnbull granted the appellees’ motions for directed verdicts. On 4 November 1974, final judgment was entered. It is from that judgment that this appeal is taken.

I

The appellees initially contend that the language contained in the Korvette Tire Centers All-Road-Hazard Tire Guarantee, when read as a whole, does not constitute an express warranty against blowouts, but rather constitutes a guarantee that if a blowout occurs, the tire will be replaced. We do not agree.

Maryland Annotated Code, Comm.L.Art., § 2-313 (1975) [hereinafter referred to as Comm.L.Art.], defines an express warranty, in pertinent part, as follows:

“(1) Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.”

In considering the definition of an express warranty, the Court of Appeals long ago recognized the distinction which exists between an express warranty and an executory promise or contractual undertaking. In White Automobile Co. v. Dorsey, 119 Md. 251, 86 A. 617 (1913), it was alleged, in a special count, that the seller represented to the buyer of an automobile that:

“said automobile was sound, free from defects in workmanship, and materials, and would be satisfactory to the plaintiff, and that said defendants would keep the same in satisfactory running condition, without expense to the plaintiff, for a period of one year from the date of said purchase.” Id. at 254, 86 A. at 619. (Emphasis in original.)

In the same count, the buyer alleged that the contract had been breached because the automobile was “unsound and defective as to workmanship and material,” and “constantly required repairs,” and because the sellers failed and refused to put the car “in good order and repair.” The Court of Appeals held that a demurrer to this count should have been sustained, stating:

“The count combines two distinct causes of action; first, a breach of the express warranty that the automobile ‘was sound, free from defects in workmanship and material, . . .’; and secondly, a breach of a contract on the part of the defendants ‘to keep the same in satisfactory running condition, without expense to the plaintiff, for a period of one year from the date of said purchase.’ ” Id. at 256, 86 A. at 619.

The Court then concluded that the two separate causes of action should have been pleaded in separate counts.

The Court thus recognized that language relating to the existing qualities, capabilities and condition of goods constituted an express warranty. Language promising that the seller would repair goods in the event of a breach of the warranty, did not relate to the existing qualities, capabilities or condition of the goods, and, consequently, did not constitute an express warranty, but rather an executory contractual undertaking to be performed in the future.

In the case of Rittenhouse, Winterson Auto Co. v. Kissner, 129 Md. 102, 98 A. 361 (1916), it was alleged that the seller represented to the buyer of a truck that it:

“was a first class car, was as good as new and was in sound and first class condition; and that if it was not abused but handled with care, it would last the plaintiff at least four years.” Id. at 104, 98 A. at 362. (Emphasis added.)

The breaches charged in the same count were that the truck was “unsound and in bad condition” and “did not last the plaintiff at least four years.”

In Rittenhouse, as in White, a demurrer was filed, contending that the special count for breach of warranty was improper because the assurance as to the serviceability of the truck for the period of four years was not a warranty, but, at most, an executory undertaking which could not properly be combined in one count with the warranties as to the truck’s quality and condition. In considering the applicability of White, the Court said:

“In that case, however, the averment held objectionable, when made in combination with the breach of warranty declared on in the same count, was that the defendants failed to perform their agreement to keep the automobile sold by them to the plaintiff in satisfactory running order, without expense to him for one year from the date of the purchase. This assumption of an affirmative contractual duty was essentially different from the representation here relied upon as to the time during which the motor truck was capable of rendering efficient service. The assurance to that effect was not an executory promise, but had reference to an existing quality or capacity, and was hence closely akin to the other representations with which it was joined. In our opinion the demurrer was properly overruled.” Id. at 104-05, 98 A. at 362. (Emphasis added.)

Thus, the Court of Appeals reasserted its previously drawn distinction between an express warranty and an executory promise. An assurance that a truck would perform in a certain way for a given period of time in the future constituted an express warranty because it had reference to the existing quality, capacity or condition of the goods. An assurance that the seller would, at some time in the future, perform certain services in the event that the goods should not conform to the representation, so that the warranty was breached, constituted an executory promise or contractual undertaking because it had reference, not to the existing quality, capacity or condition, of the goods, but rather to the assumption of an affirmative contractual duty to be performed in the future.

There is nothing in the language of Comm.L.Art., § 2-313 which requires a departure from these basic principles which were applied under both the common law and the Uniform Sales Act. Applying these principles to the instant case produces a clear result.

Here the language on the invoice given to the buyer to the effect that “the tires identified hereon are guaranteed for 36.000 miles . .. against all road hazards, including .. . blow out. . .” constitutes an affirmation that the tires are of such existing quality, capacity and condition as to make them capable of rendering service without blowing out before they have been used for 36,000 miles. This assurance of the serviceability of the tires for a given number of miles, because it is a representation as to the existing quality, capacity and condition of the tires, constitutes an express warranty that the tires will not blow out during the first 36.000 miles of use.

Questions remain as to what impact the additional language appearing on the invoice has upon the scope and extent of the express warranty. Comm.L.Art., § 2-316 specifically recognizes a right on the part of the warrantor to negate, modify or limit an express or implied warranty under certain circumstances. It also implicitly recognizes that warranties may be limited in two different ways — one by “disclaiming” the warranty or a part of the warranty itself in the manner prescribed by subsections (1) — (3), and the other by “limiting the remedy” available upon breach (subsection (4)) in the manner prescribed by Comm.L.Art., §8 2-718 and 2-719 .

Here the language which says that the guarantee applies only when the tires are used in normal non-commercial passenger car service, and does not apply to tires that are run flat, or simply worn out, injured by a fire, collision, vandalism, misalignment or mechanical defects of the vehicle, constitutes a disclaimer under Comm.L.Art., § 2-316 (1). The language which not only promises to replace the tire if a blowout occurs, but also attempts to avoid consequential damages and restrict the remedies of the buyer solely to replacement, constitutes a limitation of remedies under Comm.L.Art., § 2-316 (4), governed by the provisions of Comm.L.Art., § 2-719. Comm.L.Art., § 2-316.1 is inapplicable.

Comm.L.Art., § 2-719 gives the parties considerable latitude in which to fashion their remedies to their particular requirements. It expressly recognizes that parties may limit their remedies to repair and replacement. The parties, however, must accept the legal consequence that there be some fair remedy for breach of the obligations or duties outlined in the contract. Reasonable agreements which limit or modify remedies will be given effect, but the parties are not free to shape their remedies in an unreasonable or unconscionable way. Comm.L.Art., § 2-719 (3) recognizes the validity of clauses limiting or excluding consequential damages, otherwise available under Comm.L.Art., § 2-714 (3), but expressly states that they may not operate in an unconscionable manner. That subsection also establishes that limitation of consequential damages for injury to the person in the case of consumer goods is prima fade unconscionable.

Comm.L.Art., § 2-302 (1) sets forth the alternatives available to a court when it finds a limitation of remedy to be unconscionable. That section permits the court in its discretion, after a finding of unconscionability, to refuse to enforce the contract as a whole, if it is permeated by the unconscionability, or to strike any single clause or group of clauses which are so tainted or which are contrary to the essential purpose of the agreement, or to simply limit unconscionable clauses so as to avoid unconscionable results. Thus, any clause purporting to modify or limit remedies in an unconscionable manner is subject to deletion and will not be given effect.

Here the executory promise to replace the tire in the event of a blowout, found in the first paragraph of the warranty, is, in and of itself, nothing more than an express statement that the remedy of replacement is available in addition to all of the other remedies provided by law. But that executory promise, coupled with the clause purporting to exclude liability for consequential damages and to limit liability solely to replacement, clearly expresses an intent that replacement be the sole remedy under the contract.

The record shows, however, that the warranted tires which Mrs. McCarty purchased were bought for “her” stationwagon, which was ordinarily driven about 150 miles per week; that she did not seek damages for loss of employment; and that her husband was employed as a “locomotive engineer” and did not, therefore, use an automobile for business purposes. This evidence supports a rational inference that the warranted tires here constitute consumer goods as defined by Comm.L.Art., § 9-109, so that the provisions of Comm.L.Art., § 2-719 (3) are applicable.

The clause purporting to limit the consumers’ remedy solely to replacement of the tire purports to exclude liability for both personal injury and property damage. At trial, the appellees presented no evidence to show that the purported exclusion of consequential damages for personal injury was not unconscionable. Accordingly, to the extent that the clause purports to limit consequential damages for personal injury, it is unconscionable as a matter of law.

In Collins v. Uniroyal, Inc., 64 N. J. 260, 315 A. 2d 16 (1974), the Supreme Court of New Jersey held that an express warranty against blowouts had been breached when a blowout occurred, notwithstanding the fact that a defect in the material and workmanship in the tire had not been proved. There, the express warranty provided:

“ROAD HAZARD — In addition, every such U.S. Royal Master tire, when used in normal passenger car service, is guaranteed during the life of the original tread against blowouts, cuts, bruises, and similar injury rendering the tire unserviceable. Tires which are punctured or abused, by being run flat, improperly aligned, balanced, or inflated, cut by chains or obstructions on vehicle, damaged by fire, collision or vandalism, or by other means, and ‘seconds’ are not subject to the road hazard provision of this Guarantee.
“This Guarantee does not cover consequential damage, and the liability of the manufacturer is limited to repairing or replacing the tire in accordance with the stipulations contained in this Guarantee. No other guarantee or warranty, express or implied, is made.” Id., 315 A. 2d at 19.

The Court cogently expressed the reasons for regarding a provision limiting the remedy to replacement of the tire to be “patently” unconscionable, and, therefore, invalid by stating:

“A tire manufacturer warrants against blowouts in order to increase tire sales. Public advertising by defendant relative to these tires stated: ‘If it only saves your life once, it’s a bargain.’ The seller should be held to realize that the purchaser of a tire buying it because so warranted is far more likely to have made the purchase decision in order to protect himself and the passengers in his car from death or personal injury in a blowout accident than to assure himself of a refund of the price of the tire in such an event. That being the natural reliance and the reasonable expectation of the purchaser flowing from the warranty, it appears to us patently unconscionable for the manufacturer to be permitted to limit his damages for a breach of warranty proximately resulting in the purchaser’s death to a price refund or a replacement of the tire. We consequently agree with the determination of the Appellate Division that the statutory presumption of unconscionability was not here overcome and that the trial court ruled correctly on the issue.”Id., 315 A. 2d at 18.

While there is no statutory presumption of unconscionability with respect to a limitation of consequential damages for injury to property in the case of consumer goods, the rationale in Collins persuades us that the clause here, which attempts to exclude liability for both personal injury and property damage is so tainted by unconscionability as to warrant deletion in its entirety. If the appellees do not want to be liable for consequential damages, they should not expressly warrant the tires against blowouts.

Under the present circumstances, the clause purporting to restrict remedies solely to replacement is ineffective. It cannot serve to convert the express warranty against blowouts into a guarantee that if a tire blew out, “the tire would be replaced.”

II

The appellees next contend that even assuming the existence of an express warranty, the grant of the motions for directed verdicts here was proper because there was insufficient evidence to show a breach of that warranty. Relying upon Little v. Woodall, 244 Md. 620, 224 A. 2d 852 (1966), they initially assert that the express warranty here is not an unconditional warranty against blowouts during the first 36,000 miles, but rather is limited to or conditioned upon a defect in materials or workmanship. They assert that no evidence of such a defect was presented. In addition, they argue that there was insufficient evidence presented to show that a blowout, which was not a direct result of a warranty exclusion, had occurred.

In Little, a buyer had entered into a contract for the installation of an aluminum awning carport. The contract between the parties was printed, except that the description of the awning to be installed, the price to be paid, and the words “Fully guaranteed” were handwritten. One of the printed provisions indicated that the contract was “subject to strikes, meteorological conditions and other conditions” beyond the appellant’s control. Parol evidence showed that just before the words “Fully guaranteed” were inserted, the seller had said that the awning was guaranteed “against anything.” “This thing is up to stay. You will never have to worry about it... . Once this thing is up it will stay up.” “Nothing would bring it down.” The buyer testified that the carport was “never caulked right” so that there was constant leaking between the carport and the house, a condition which was never successfully remedied by the seller. Ultimately, during a snow storm in which the snow was “wet and melting fast” the carport pulled loose from the house at the place of leakage and collapsed on the buyer’s car. There was evidence to show that the accumulation of snow the night before the awning fell was about four inches and that no other carport on the street had collapsed.

The Court of Appeals found the language of the warranty to be ambiguous, and construed the guarantee as one limited to the durability of the material and quality of the workmanship. In reaching this conclusion, the Court said:

“A warranty that the article sold will last for a certain time, if unconditional, is binding upon the seller. Rittenhouse, Winterson Auto. Co. v. Kissner, 129 Md. 102, 98 Atl. 361 (1916); Williston, Sales § 212 (Rev. Ed. 1948). However, the phrase ‘Fully guaranteed,’ of itself, means no more than that the work shall be done in a good and workmanlike manner and that the material will be adequate for the designated purpose in accordance with the contract. Pychinka v. Keystone Home Improvement Co., 4 D. & C. 2d 492 (Pa. Com.Pleas 1955). Even in the light of the oral testimony, the clear intent of the guarantee within the context of the entire contract is that the carport will stay up, as far as the materials and workmanship are concerned. The printed clause in the contract, which is below the written guarantee, that the contract is subject to meteorological and other conditions beyond the appellant’s control, shows that the guarantee was not intended to be unconditional, but was limited to the durability of the material and the quality of the workmanship.” Id., 244 Md. at 625, 224 A. 2d at 855.

The Court then held that there was sufficient evidence before the trier of the facts to show that the warranty, even though confined to material and workmanship, had been breached.

We have previously held that the language appearing on the invoice given to the consumers here creates an express warranty that the tires purchased will not blow out before they have been driven 36,000 miles. There is no statement on that invoice that the tires are “fully guaranteed.” Nor is there any statement that the contract is subject to conditions beyond the appellees’ control. Indeed, the language of this warranty to the effect that it is a warranty against all road hazards, including not only blowouts, tread separations and fabric cuts, but also stone bruises, impact bruises and glass cuts, shows that this guarantee is not intended to be limited to conditions within the warrantor’s control, such as defects in material and workmanship. Rather, the warranty is intended to assure the consumers of protection from all hazards of the road, including a blowout resulting from any cause other than one which has been validly disclaimed. In short, the language of this express warranty is unambiguous and clear. It constitutes a warranty that the quality, capacity and condition of the tires is such that they will not suffer a blowout from any cause other than those disclaimed, during the first 36,000 miles of use.

Ordinarily, a consumer must show that the product about which he complains is defective in some manner and that the defect caused his injury. In most circumstances, a “defect” will consist of something that is “wrong” with the product at the time it leaves the control of the warrantor, such as a defect in material or workmanship, which causes the product to fail to perform properly and consequently to cause injury to its user. Yet, in certain situations:

“[E]ven a properly made or perfectly made product may be regarded as defective. Thus, in an action for injuries from the breach of an express warranty, the test of defectiveness is whether the product performs in accordance with the express warranty given.”

It is axiomatic in Maryland that an express warranty is breached when a product fails to exhibit the properties, characteristics, or qualities specifically attributed to it by its warrantor, and therefore fails to conform to the warrantor’s representations. The breach of an express warranty of materials and workmanship is established by proof of defects in the material or workmanship. The breach of an express warranty that a roof will not leak for 15 years is established by evidence that during that period of time the roof leaked. The breach of an express warranty that pipes would seal upon spill going through is established by evidence that when the pipe was assembled and installed, the joints did not seal when spill was pumped through under pressure, and there was leakage The breach of an express warranty that a product will last for four years is established by evidence that the product did not last for that period of time. Thus, no “defect” other than a failure to conform to the warrantor’s representations need be shown in order to establish a breach of an express warranty.

Had the tire here involved been warranted only against defects in material and workmanship, the consumers, in order to establish a breach of warranty, would have had to show that the blowout was caused by such a defect existing at the time the tire left the warrantor’s control. But since the tire here involved is warranted, during its first 36,000 miles, against a blowout resulting from a cause other than one validly disclaimed, the consumers need show nothing more than that a blowout occurred, and that the conditions under which coverage was disclaimed did not exist. The fact of such a blowout establishes that the tire is “defective” within the meaning of the express warranty, because it does not possess the properties specifically attributed to it by the warrantor and, thus, fails to conform to the warrantor’s representations. Other courts agree.

We must also reject the appellees’ contention that there was insufficient evidence to show that a blowout, resulting from a cause not validly disclaimed, had occurred. Here the consumers testified as to the circumstances surrounding the accident. There was evidence to show that four warranted tires were purchased by Mrs. McCarty from Korvettes Tire & Auto Centers on 25 February 1971. Within the week, they were mounted on Mrs. McCarty’s 1965 stationwagon by Korvettes Tire & Auto Centers. During the following week, Mrs. McCarty had the wheels of the wagon balanced and the front end aligned. On 28 May 1971, in preparation for a vacation trip, Mrs. McCarty had the car, including the brakes and wheel cylinders, checked.

On 14 June 1971, at about 10:00 a.m., the McCartys, then on the way home from their vacation, left Abilene, Texas, and headed for Little Rock, Arkansas. Before leaving on that morning, Mr. McCarty checked the pressure in the tires with his tire pressure gauge, as he had done every morning of the trip. He determined that the tires were properly inflated in accordance with the standards set forth in the owner’s manual. He then drove, without experiencing anything unusual in the operation or handling of the car, about 450 miles to a small town called Prescott, Arkansas, where, at about 7:00 p.m., the McCartys stopped to refuel. While the gas station attendant was filling the tank and adding a quart of oil, Mr. McCarty made a visual inspection of the four tires, all of which then appeared to be properly inflated. After the servicing of the car was completed, Mrs. McCarty took over the driving.

At about 7:30 p.m., approximately 15 minutes after she had begun to drive, Mrs. McCarty was driving in Arkadelphia, Arkansas, along Interstate 30, a four lane, divided highway which was level and straight and afforded her a totally unobstructed view. It was still daylight. The temperature was about 80 degrees; the weather was “beautiful,” and there was no rain. There was very little traffic moving along the road and there was nothing unusual in the operation or handling of the car. According to Mrs. McCarty, “[t]he next thing I knew I hear this bang, which I thought it was a jet overhead, until I couldn’t control the car, and the car started fishtailing from side to side, and everything, like it come back over to the left side and hit the gravel, and she spun over, and rolled over on us, rolled two and a half times.” Her personal inspection of the tires, made immediately after the accident, revealed that “the back right tire was terribly mangled.” According to Mr. McCarty, at the time of the accident he had “just about half dozed off, and was in this state at the time the tire blew out, the explosion woke me up, it sounded something like a cannon going off.” The rear of the car started “swaying” from side to side until the car became uncontrollable and ultimately turned over two-and-one-half times. His visual inspection of the tires, made immediately after the accident, revealed that the “right rear tire was all chewed up around the rim, as if it was blown, and the other tires were all okay.”

Finally, there was evidence to show that the tires purchased from Korvettes Tire & Auto Centers had never been removed from the vehicle and had been driven between 5,500 and 7,000 miles before the accident occurred.

The term “blowout” used as a noun, is defined in the American Heritage Dictionary of the English Language as:

“A sudden rupture or bursting, as of an automobile tire.”

The same term is defined in Webster’s International Dictionary, 2nd Edition, as:

“A bursting of a container caused by the weight or pressure of the contained material, as ... of a pneumatic tire by pressure of the contained air on a weak spot.”

The word, as it relates to tires, is one commonly understood by laymen.

In our opinion, the evidence of the circumstances surrounding the deflation of the right rear tire of the McCarty stationwagon, viewed in the light most favorable to the consumers, was sufficient to support a rational inference that that tire had ruptured or burst and that a blowout of that tire, which was not a direct result of a warranty exclusion, had taken place. It was also sufficient to show that the blowout was the proximate cause of the personal injuries and property damage suffered by the consumers. Accordingly, we hold that there was evidence sufficient to require submission to the jury of the questions of whether there was a breach of an express warranty which was the proximate cause of injury to the consumers.

Having determined that the language contained in the Korvette Tire Centers All-Road-Hazards Tire Guarantee constitutes an express warranty against blowouts resulting from any cause other than one validly disclaimed, and that the evidence was sufficient to require submission to the jury of the questions of whether the right rear tire of the consumers’ car did, in fact, blow out and whether as a result of that blowout they suffered personal injury and property damage, we conclude that the motions for directed verdicts should have been denied. The judgment will be reversed and the case remanded for a new trial.

The other contentions raised by the consumers need not be considered here. Moreover, the contentions here of E. J. Korvette, Inc., and Tires, Inc., raised only by E. J. Korvette, Inc., below, that the appellants failed to show that an express warranty existed between them because they failed to establish that there was a sale by E. J. Korvette, Inc,, and/or Tires, Inc., to them, or a contract for sale between them as required by Comm.L.Art., § 2-313, as well as their contentions here, not raised by either below, that the appellants failed to prove that they gave reasonable notice of the alleged breach of warranty as required by Comm.L.Art., §' 2-607 (3) (a) are not properly before us because they were not decided below. Similarly, the contention of Denman Rubber Manufacturing Co., that any express warranty which may have been created was made only by E. J. Korvette, Inc., and not by Denman Rubber Manufacturing Co., is not appropriately before us because it was neither raised nor decided below.

Judgment reversed.

Case remanded for a new trial.

Costs to be paid by appellees.

      . The Uniform Commercial Code, effective in Maryland 1 February 1964, now codified in the Commercial Law Article of the Maryland Annotated Code, 1975 Laws of Maryland, Ch. 49, § 2, was formerly codified in Art. 95B of the Code (1957, 1964 Repl. Vol.).

      . Section 30 of the Uniform Sales Act, 1910 Laws of Maryland, Ch. 346, at 275, the predecessor of Comm.L.Art., § 2-313, provided, in pertinent part, that:
      “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.”
      The Court of Appeals has observed that this Section of the Uniform Sales Act was declaratory of a principle of the common law. Schley v. Zalis, 172 Md. 336, 339, 191 A. 563, 564 (1937); Rittenhouse, Winterson Auto Co. v. Kissner, 129 Md. 102, 105, 98 A. 361, 362 (1916).

      . This case arose when Section 30 of the Uniform Sales Act was in effect. See note 2 above.

      . “§ 2-316. Exclusion or modification of warranties.
      “(1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this subtitle on parole [parol] or extrinsic evidence (§ 2-202) negation or limitation is inoperative, to the extent that such construction is unreasonable.
      “(2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that ‘There are no warranties which extend beyond the description on the face hereof.’
      “(3) Notwithstanding subsection (2)
      “(a) Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is,’ ‘with all faults’ or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty; and
      “(b) When the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and
      “(c) An implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.
      “(4) Remedies for breach of warranty can be limited in accordance with, the provisions of this subtitle on liquidation or limitation of damages and on contractual modification of remedy (§§ 2-718 and 2-719).” (Emphasis added.)

      . The difference between the two modes of negating or modifying a warranty has been clearly expressed in J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code § 12-11, at 383-84 (1972):
      “A disclaimer clause is a device used to exclude or limit the seller’s warranties; it attempts to control the seller’s liability by reducing the number of situations in which the seller can be in breach. An exclusionary clause [limitation of remedies], on the other hand, restricts the remedies available to one or both parties once a breach is established. Assume, for example, that a new-car buyer sues for breach of warranty, and the seller raises defenses based on disclaimer and exclusionary clauses. The disclaimer defense denies the existence of any cause of action. The exclusionary-clause defense, on the other hand, denies that the buyer is entitled to the remedy he demands — for example, consequential damages. . . .”

      . Comm.L.Art., § 2-316, Official Comment 2, provides, in pertinent part:
      “This title treats the limitation or avoidance of consequential damages as a matter of limiting remedies for breach, separate from the matter of creation of liability under a warranty. If no warranty exists, there is of course no problem of limiting remedies for breach of warranty. Under subsection (4) the question of limitation of remedy is governed by the sections referred to rather than by this section.”

        See Cyclops Corp. v. Home Insurance Co., 389 F. Supp. 476, 478 (W.D. Pa. 1975); Potomac Electric Power Co. v. Westinghouse Electric Corp., 385 F. Supp. 572, 578 (D.C. D.C. 1974); S-C Industries v. American Hydroponics Systems, Inc., 468 F. 2d 852, 855 (5th Cir. 1972).

      . Comm.L.Art., § 2-316.1, Limitation of exclusion or modification of warranties to consumers, provides, in pertinent part:
      “(1) The provisions of § 2-316 [including subsection (4)] do not apply to sales of consumer goods, as defined by § 9-109, services, or both.”
      The fact that the instant warranty was made on 25 February 1971 precludes the applicability of § 2-316.1 which did not become effective until 1 July 1971. See Blankenship v. Morrison Machine Co., 255 Md. 241, 247, 257 A. 2d 430, 433 (1969).

      . Comm.L.Art., § 2-719, Contractual modification or limitation of remedy, provides, in pertinent part:
      “(1) Subject to the provisions of subsections (2) and (3) of this section and of the preceding section on liquidation and limitation of damages,
      “(a) The agreement may provide for remedies in addition to or in substitution for those provided in this title and may limit or alter the measure of damages recoverable under this title, as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and
      “(b) Resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.
      “(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in Titles 1 through 10 of this article.
      “(3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima fade unconscionable but limitation of damages where the loss is commercial is not.” (Emphasis added.)
      Comm.L.Art., § 2-714 (3) provides that “[i]n a proper case any incidental and consequential damages under the next section may also be recovered.” See Fred J. Miller, Inc. v. Raymond Metal Products Co., 265 Md. 523, 528, 290 A. 2d 527, 530 (1972).
      Comm.L.Art., § 2-715 (2) (b) defines consequential damages as “injury to person or property proximately resulting from any breach of warranty.”
      Comm.L.Art., § 9-109 (1) defines consumer goods as goods “used or bought for use primarily for personal, family or household purposes.”

      . Comm.L.Art., § 2-719, Official Comment 1; see W. Hawkland A Transactional Guide to the Uniform Commercial Code § 1.28 (1964).

      . Comm.L.Art., § 2-719, Official Comment 3.

      . Comm.L.Art., § 2-302 (1) provides:
      “If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.” (Emphasis added.)

      . Comm.L.Art., § 2-302, Official Comment 2.

      . Comm.L.Art., § 2-719, Official Comment 1.

      . Comm.L.Art., § 2-719 (1) (b) creates a presumption that clauses prescribing remedies are cumulative rather than exclusive. If the parties intend such a clause to describe the sole remedy under the contract, such intent must be clearly expressed. Comm.L.Art., § 2-719, Official Comment 2.

      . See note 8 above.

      . Accord, Matthews v. Ford Motor Co., 479 F. 2d 399, 402 (4th Cir. 1973); cf. Ford Motor Co. v. Tritt, 430 S.W.2d 778, 781 (Ark. 1968).

      . Comm.L.Art., § 2-719, Official Comment 3, provides:
      “The seller in all cases is free to disclaim warranties in the manner provided in Section 2-316.”

      . R. Hursh & H. Bailey, American Law of Products Liability 2d, § 1:7, at 16-21 (1974).

      . Addressograph-Multigraph Corp. v. Zink, 273 Md. 277, 283, 329 A. 2d 28, 32 (1974); Little v. Woodall, 244 Md. 620, 626, 224 A. 2d 852, 855-56 (1966); McCeney v. Duvall, 21 Md. 166, 185 (1864); see Giant Food, Inc. v. Washington Coca-Cola Bottling Co., Inc., 273 Md. 592, 607-09, 332 A. 2d 1, 10-11(1975).

      . R. Hursh & H. Bailey, supra note 17a, at 20-21.

      „ Comm.L.Art., § 2-313.

      . Addressograph-Multigraph, supra, 273 Md. at 283, 329 A. 2d at 32; Little, supra, 244 Md. at 626, 224 A. 2d at 855.

      . Corelli Roofing Co., Inc., v. National Instrument Co., Inc., 240 Md. 627, 632, 214 A. 2d 919, 921 (1.965).

      . Fred J. Miller, Inc. v. Raymond Co., 265 Md. 523, 525, 528, 290 A. 2d 527, 528, 530 (1972).

      . Rittenhouse, supra, 129 Md. at 108-09, 98 A. at 363.

      . Hansen v. Firestone Tire & Rubber Co., 276 F. 2d 254, 257 (6th Cir. 1960); Senter v. B.F. Goodrich Co., 127 F. Supp. 705, 710 (D. Colo. 1954); Collins, supra, 315 A. 2d at 17; see Ein v. Goodyear Tire & Rubber Co., 173 F. Supp. 497, 499 (N.D. Ind. 1959).
      The cases relied upon by the appellees are inapposite. None of them involves an express warranty against blowouts. The question of the nature of the defect which must be shown in order to establish the breach of such a warranty is not considered. See Lucas v. Firestone Tire & Rubber Co., 458 F. 2d 495 (5th Cir. 1972); Markwell v. General Tire & Rubber Co., 367 F. 2d 748 (7th Cir. 1966); Van Winkle v. Firestone Tire & Rubber Co., 253 N.E.2d 588 (App.Ct. Ill. 1969); Shramek v. General Motors Corp., 216 N.E.2d 244 (App.Ct. Ill. 1966); Williams v. U.S. Royal Tires, 101 So. 2d 488 (La. App. 1958); Halpern v. Jad Construction Corp., 244 N.Y.Supp.2d 147 (App.Div. 1963); Malinak v. Firestone Tire & Rubber Co., 436 S.W.2d 210 (Tx.Cv. App. 1968).

      . In deciding whether a motion for directed verdict was properly granted, we must consider the evidence, together with all reasonable and legitimate inferences which may be deduced therefrom, in the light most favorable to the party against whom the motion was directed. Ramsey v. D.P.A. Associates, 265 Md. 319, 320-21, 289 A. 2d 321, 322 (1972): Shipp v. Autoville Ltd., 23 Md. App. 555, 560-61, 328 A. 2d 349, 353 (1974).

      . Maryland Rule 1085; Raitt v. The Johns Hopkins Hospital, 274 Md. 489, 497, 336 A. 2d 90, 94 (1975); see Maryland Rule 552 a.