Brawner v. Hooper

• Decision Date: 06 December 1926
• Docket Number: 43.
• Citation: 135 A. 420,151 Md. 579
• Parties: BRAWNER v. HOOPER.
• Court: Maryland Court of Appeals

135 A. 420

151 Md. 579

BRAWNER v. HOOPER.

No. 43.

Court of Appeals of Maryland

December 6, 1926

Appeal from Superior Court of Baltimore City; Charles F. Stein Judge.

"To be officially reported."

Action by Daisy A. Hooper against Harry O. Brawner. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Argued before BOND, C.J., and ADKINS, OFFUTT, DIGGES, and PARKE, JJ.

Edward L. Ward, of Baltimore (Edwin W. Wells, of Baltimore, on the brief), for appellant.

Charles C. Wallace and Edward Hopkins Hammond, both of Baltimore, for appellee.

OFFUTT J.

This is an appeal from a judgment for the plaintiff in the retrial of the case of Hooper v. Brawner, 148 Md. 417, 129 A 672. The case grows out of a collision between an automobile which was at the time of the accident owned by the appellant and driven by his chauffeur, and another one in which the appellee was a passenger and which was at that time driven by her husband.

In the course of the trial the plaintiff offered evidence which tended to show these facts, which for convenience we will state in narrative form. The car in which appellee was riding was, between 1 and 2 o'clock in the afternoon of Sunday, June 17, 1923, proceeding westerly along the Frederick road at a point near Cooksville, when it approached another automobile parked on the south side of the road facing east and entirely off of the macadam. The road at that point is about 30 feet wide, of which the center or macadam part is about 12 or 14 feet wide with broken and irregular edges. There is a dirt shoulder or way 8 or 9 feet wide on either side, and the grade slopes downward towards the east. As the appellee's car, a Dodge, approached the parked car, a Haynes, another automobile, a Buick, coming east, swung out of its course to pass the Haynes, collided with the appellee's car, hooked its left rear wheel in the left front wheel of appellee's car, and pulled it around across the road at an angle of about 45 degrees so that it finally came to a standstill about a foot from the parked car. While it was in that position appellant's car, a Kissel, coming east, at about 50 or 55 miles an hour, struck it on the right side and injured the appellee. There was also evidence that the driver of the appellant's car "slid the wheels" 37 feet before it struck the appellee's car, that it struck appellee's car "behind where the front fender goes onto the running board, between that and the back, driving his radiator and headlights and wheels all underneath, also driving the body through, tearing the running board and fender off," and there was evidence that there was "plenty of space between the rear of the Dodge car and the north side of the road," and that the situation of the Dodge car could have been seen by one approaching from the west for a distance of at least 300 feet.

When the accident occurred appellant was not present, but his automobile was occupied by Mrs. Eleanor Brannan, his mother-in-law, and her two nieces, the Misses Winsett, under the following circumstances: At that time Mr. Brawner lived at the Baltimore Country Club, and his car was kept at the Roland Park Garage. Mrs. Brannan, the mother of his deceased wife, lived at the Geneva apartments, and Mr. Brawner was accustomed to place his car and chauffeur at her disposal whenever she wanted it. And she, to quote her testimony, "used to go out in it every Sunday afternoon, because he never used the car on Sunday afternoon"; she used to go out, "just take a ride"; and on the "afternoon in question" the chauffeur brought it "as usual," and when they started she said to him, "We will take a nice ride," and that is all she said to him, because "of course he knew we wanted to go in the country somewhere." And he, without any further direction, drove out the Frederick road, although, because of the heavy traffic, Mrs. Brennan did not care particularly for that drive on Sunday afternoons. She was accompanied by her two nieces, whom she had invited for the drive. Mr. Brawner did not know that they were going or where they were going, nor does it appear that she herself knew. In his own behalf Mr. Brawner said: That he loaned her the car on "that Sunday," although he did not recall whether she asked specially for it on that occasion, because such a request was not necessary; "she has the privilege of driving the car when she cared to without any--in fact, without any instructions from me whatsoever. She had the privilege of using the car when it was convenient for her to do so." That he loaned the chauffeur with the car, but gave him no instructions as to taking Mrs. Brannan out, in fact he had no conversation with him at all on that occasion, and to the best of his recollection did not see him before he left "for Mrs. Brannan's" and that he had no direction or control over the chauffeur "while the car was in the possession of Mrs. Brannan." It was understood that the chauffeur would drive the car to her house on Sunday afternoons, and he apparently did that as a matter of course without any request from Mrs. Brannan or special direction from Mr. Brawner. This is in substance the testimony relevant to the first ten exceptions presented by this appeal.

Of these ten exceptions, nine relate to the rulings of the trial court upon questions of evidence and one to its rulings on the prayers. The plaintiff offered four prayers of which the court refused three and granted the fourth, which related to the measure of damages. The defendant offered nine prayers of which the first three were refused and the others granted. The defendant's first prayer was a demurrer to the evidence, and, if appellant was answerable for the negligence of his chauffeur, was in our opinion properly refused. There was in the case some evidence from which the jury could have inferred that the accident was occasioned by the negligence of the appellant's chauffeur, and the weight of that evidence was for the jury to determine. By his third prayer he sought to have the jury instructed that there was no evidence legally sufficient to show that the accident was caused "solely by the wrongful act, neglect, or default of the defendant's driver," and that in the absence of such evidence the plaintiff could not recover. That prayer was obviously erroneous, because the plaintiff was not obliged to show that the accident was occasioned "solely" by the negligence of the defendant's chauffeur; it was enough if she showed that his negligence, concurring or combined with the negligence of the driver of the Buick car, caused it, and there was unquestionably evidence in the case from which that inference could have been drawn. 3d Ed. Cooley on Torts, 248, etc.; Leland v. Empire Eng. Co., 135 Md. 208, 108 A. 570. Where the negligent acts of two or more persons other than the plaintiff and not imputable to him acting independently combine to produce the injury complained of, no one of them can escape liability on the ground that his negligence was not the sole cause of the injury.

The principal question raised by the appeal, however, is presented by the refusal of the defendant's second prayer. By that prayer the appellee asked the court to instruct the jury:

"That as it appears from the uncontradicted evidence in this case that the automobile of the defendant was loaned by him on the occasion in question together with the driver thereof to Mrs. Brannan for her personal pleasure and use, and that at the time of the accident in question said automobile was being operated solely for her pleasure and benefit, and that the defendant had no control or direction over said automobile or the driver thereof, their verdict must be in favor of the defendant."

The only difference between that prayer and the defendant's second prayer in the case of Hooper v. Brawner, supra, is that in this case the prayer states as a matter of law that the defendant had no control or direction over said "automobile or the driver thereof," while in the former case, the prayer stated that the defendant had no control or direction over "said automobile." Counsel for the appellant, however, contend with unusual force and earnestness that under the evidence in this case that prayer should have been granted, notwithstanding that in the former appeal this court disapproved it. That contention is based upon the assumption that the evidence in the present case supplies proof which was wanting at the first trial that the defendant's automobile and the driver thereof were not at the time of the accident under the control and direction of the defendant. But we are unable to agree with that contention. The issue tendered by that prayer was whether in operating the car at the time of the accident appellant's chauffeur was acting within the scope of his employment and subject to appellant's control and direction. The only evidence on that question at the former trial was that of Mrs. Brannan, and the only evidence relating to it at this trial was that of Mrs. Brannan and Mr Brawner. Mrs. Brannan's testimony as to it was substantially the same at both trials, and Mr. Brawner in his testimony in this case added nothing to the legal effect of her testimony in the first trial. Mrs. Brannan in the first trial of this case said that on the day of the accident Mr. Brawner loaned her his car and chauffeur; that Mr. Brawner was not present; that she frequently borrowed the car from him; that whenever she wanted it he loaned it to her; that the trip was for pleasure, and that Mr. Brawner had no interest in it; and that he employed and paid the chauffeur. To that, in testifying in this case she added, that it was generally understood that the chauffeur would bring the car down on Sundays, and that he brought it as usual on "that Sunday...