Dearholt Motor Sales Co. v. Merritt

• Decision Date: 05 December 1918
• Docket Number: 5.
• Parties: DEARHOLT MOTOR SALES CO. v. MERRITT.
• Court: Maryland Court of Appeals

105 A. 316

133 Md. 323

DEARHOLT MOTOR SALES CO. v. MERRITT.

No. 5.

Court of Appeals of Maryland

December 5, 1918

Appeal from Superior Court of Baltimore City; Walter I. Dawkins Judge.

"To be officially reported."

Action by William Merritt against the Dearholt Motor Sales Company. From a judgment for plaintiff, defendant appeals. Reversed without awarding a new trial.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON URNER, and CONSTABLE, JJ.

J. Le Roy Hopkins, of Baltimore, for appellant.

Harry O. Levin and E. Milton Altfeld, both of Baltimore, for appellee.

THOMAS J.

This suit was brought to recover for injuries alleged to have been caused by the negligence of the defendant's servant while operating an automobile truck of the defendant on one of the streets of Baltimore City.

The accident occurred about noon on the 8th of October, 1917. The plaintiff, who was about 83 years of age, and who had been attending court, entered a jitney bus at the corner of Holliday and Fayette streets to go to his home. The jitney bus, as it proceeded in an easterly direction on Fayette street, was followed by an automobile truck, and when the bus stopped at the corner of Fayette street and Montford avenue to allow the plaintiff to get out, just as he was in the act of alighting, with his foot on the step of the bus, the truck ran into the rear of the bus and injured his foot.

This appeal is by the defendant from a judgment in favor of the plaintiff for $200, and the record contains two exceptions. The first exception is to the ruling of the court below on a motion to strike out certain evidence, and the second is to the court's action on the prayers.

After offering evidence tending to show negligence on the part of the driver of the truck, and the extent of the plaintiff's injuries, the plaintiff asked his witness Harry H. Bryan, who had stated that he was a traffic officer of the Baltimore City police force, and who was riding on the bus and saw the accident, "whether the driver of the truck made any statements at the time of the accident, or immediately thereafter." The question was objected to by the defendant, and the record states that:

"The court ruled that he would admit, subject to exception, *** any evidence as to statements made by the driver of the truck at the time of the accident or immediately thereafter."

The witness then testified as follows:

"Q. Was anything said by the driver immediately after the accident, and, if so, what? A. I got off, and went to the chauffeur and asked him did he have an operator's card; and he said, 'No; I haven't got any.' I asked him his name, and he gave me his name. Q. What was it? A. Frank Schlossler, if I have it right. Q. What is his address? A. He gave it as 1712 Greenmount avenue. Q. Was he a young or an old man? A. A young man; he appeared to be 20 or 21 years old. Q. Go ahead with your testimony. A. I then asked him who owned the bus [truck], and he told me the Dearholt Motor people; and I asked him where they had their business, and I think he gave me the same address as that he gave me before, 1712 Greenmount avenue. I asked him if he was an employé or not of the Dearholt people, and he said he was; that he was at that present time, right at the accident, the time of the accident. Meanwhile the old man was put on the bus, as was stated before, and was taken to St. Joseph's Hospital, and we came back from the hospital, after the old man's foot had been bandaged, to the station house, and the charge was put against this young man of operating an automobile without an operator's card."

Immediately below the answer to the last question, the record contains the note:

"(Objected to; struck out.)"

The plaintiff also produced as a witness the driver of the bus, Harry Champness, who described how the accident occurred, and said that he heard the conversation between the police officer, Bryan, and the driver of the truck immediately after the accident. He was asked by the plaintiff the following question:

"What, if anything did the chauffeur say to the officer?"

The question was objected to by the defendant, "but the court permitted the question to be answered, *** and admitted the evidence, subject to exception," and the witness replied:

"He gave his name and address, and and said he was going to dinner with the truck, and that he was the agent of the Dearholt Motor people, and that he was going to dinner; that he was going to dinner first; he was right on his way to dinner."

Further evidence was offered by the plaintiff tending to show negligence on the part of the driver of the truck, and the record then states that the defendant, at the request of the plaintiff, admitted that the truck was the property of the defendant, the Dearholt Motor Sales Company, but denied that the driver was its agent, and that the plaintiff closed his case.

The defendant proved by Henry L. Dearholt, the president of the defendant company, and by his son, John Edward Dearholt, and by Charles W. Small, who were employed by the defendant, that Frank Schlossler, the driver of the truck, was not on the day of the accident, and had never been, employed by the defendant; that he lived in the neighborhood of the defendant's place of business, but worked for the Crown Cork & Seal Company; that on the morning of the accident the truck had been placed in front of the defendant's place of business, and that Schlossler had taken it from that place without the knowledge or consent of the defendant, or any of its officers or employés.

At the close of the testimony, the defendant "moved the court to strike from the record the testimony of the officer, Harry H. Bryan, and Harry Champness, as to the alleged admissions by Schlossler after the accident, in which Schlossler said that he was the agent of the Dearholt Motor Sales Company, and that he was going to deliver the truck, and that he was in the employ of the Dearholt Company, and such other admissions or statements to the same effect"; and the record states that the court "struck out that portion of the witnesses' testimony where they stated that he was agent for the Dearholt Motor Sales Company, but refused the motion as to the part of the testimony as to who employed him and that he was going to deliver the car." The first exception is to this ruling of the court below, and the second is to the overruling of defendant's exception to plaintiff's prayer, the granting of the plaintiff's prayer, and the rejection of certain prayers of the defendant, including the defendant's first and second prayers, by which the court was asked to instruct the jury that there was no evidence in the case legally sufficient to show that the driver of the truck was the agent or servant of the defendant, and that the verdict of the jury should therefore be for the defendant.

It is not clear from the record whether the evidence referred to in the first exception was allowed to go to the jury or was stricken out by the court below. As we have said, immediately below the testimony of the officer, Bryan, giving the declarations of Frank Schlossler, is a note that it was objected to by the defendant and stricken out by the court, yet the same evidence is referred to in defendant's motion at the conclusion of the testimony, and the record there states that the court refused to strike out the declarations of Schlossler that he was employed by the defendant. Moreover, the appellant's counsel, while insisting that the evidence of Bryan was stricken out, devotes a part of his brief to the first exception, and to a discussion of the admissibility of the evidence.

The general rule that agency cannot, as against the principal, be proved by the admissions or declarations of the agent, is admitted by counsel for the appellee; but the theory of the appellee is that, where there is evidence tending to establish the agency, the...