Dippel v. Juliano
| Decision Date | 24 March 1927 |
| Docket Number | 34. |
| Parties | DIPPEL v. JULIANO. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore City Court; George A. Solter, Judge.
"To be officially reported."
Action by Margaret Juliano against Martin E. Dippel. Judgment for plaintiff, and defendant appeals. Affirmed.
Argued before BOND, C.J., and PATTISON, URNER, OFFUTT, DIGGES PARKE, and SLOAN, JJ.
George W. Cameron, of Baltimore, for appellant.
Vincent L. Palmisano and James J. Lindsay, Jr., both of Baltimore for appellee.
Martin E. Dippel, the appellant in this case, is an undertaker. He was employed to conduct the funeral of the father of Margaret Juliano, the appellee, a Mr. Alvigi, who was buried in St Vincent's Cemetery, from St. Leo's church in Baltimore City on August 21, 1922. Dippel had no suitable automobile of his own to use at the funeral, and, as one was required, he borrowed a limousine from Philip Herwig, who was also an undertaker, and Margaret Juliano, her mother, her aunt, and several friends became passengers in that automobile, when it formed a part of the funeral procession. After it left the church, on the way to the cemetery, it collided with a street car, under circumstances which permitted the inference that the collision was occasioned by the negligence of the driver of the Herwig automobile. Miss Juliano was injured, as a result of the collision, and subsequently she brought suit against both Dippel and Herwig to recover for those injuries. The trial resulted in a verdict in her favor against Dippel, and from the judgment thereon Dippel appealed.
The only question presented by the appeal, is whether Dippel is responsible for the negligence of Philip Herwig, Jr., who was driving the Herwig automobile at the time of the accident and the facts relevant to that issue are undisputed and may be thus stated:
Dippel was apparently employed on behalf of the family of Mr. Alvigi, by Miss Juliano. for while she sent for him her mother paid him and Dippel appears to have understood that he was employed by Miss Juliano, for he brought the bill for his services to her, although the record is far from clear on that point. He borrowed the limousine under an arrangement based rather on comity and custom than contract, by which undertakers as the need arises borrow and lend their automobiles and carriages to each other as a matter of accommodation apparently without any expectation of pecuniary reward, for while they make formal charges for the service on their books, the balances are never demanded or collected.
On the occasion in question Herwig sent an automobile and a driver to be used by Dippel in carrying out his contract with the Alvigi family to conduct the funeral of Mr. Alvigi. Dippel selected the passengers who were to go in the cars, apparently had something to do with selecting the position they were to take in the procession, and in a general way was in charge of the vehicles which formed the funeral procession. He neither employed nor paid the driver of the Herwig car, and had nothing to do with his operation of it, except that he appears to some extent at least to have controlled its route, its destination, and the speed of the cars forming the procession of which it was a part.
The plaintiff's theory of the case is that when the accident occurred the automobile was for the time and for the purposes of this case in the possession and control of Dippel, who was using it to carry out a contract which he had made to transport the family of Mr. Alvigi to the church and the cemetery where the funeral services of their father and his interment respectively took place, and that regardless of the nature of the bailment he was answerable for its operation while employed in the performance of that undertaking.
There are but two grounds on which Dippel could be charged with liability for the plaintiff's injuries, one that they were occasioned by the negligent act of his servant acting within the scope of his employment, and the other that they resulted from a breach of his contract of carriage.
It is undisputed that at the time of the accident the driver of the automobile which caused the injuries was in the general employment of Herwig, but it is just as true that at that time he was not engaged in Herwig's business but was engaged upon Dippel's business. The rule applicable to such cases has been so recently and so frequently before this court that any extended discussing of its seems unnecessary. In Sacker v. Waddell, 98 Md. 51, 56 A. 400, 103 Am. St. Rep. 374, one of the earlier cases, after stating the general rule that an owner who furnishes a vehicle together with a driver to operate it is responsible for the driver's negligence the court said:
In Salowitch v. Kres, 147 Md. 29, 127 A. 645, in speaking of the presumption that the owner of an automobile is responsible for the negligence of his servant in operating it, it is said:
"It is equally well established that this presumption is a rebuttable one and may be rebutted by the uncontradicted testimony offered on behalf of either the defendant or the plaintiff, or both, and when so rebutted the case ought not to go to the jury."
And in Hooper v. Brawner, 148 Md. 431, 129 A. 677, it was said it would be "unreasonable and illogical to hold the general employer liable for the acts of his servants in the performance of a duty which had been ordered and directed by the borrower, and which the general employer had not the power either to direct,...
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