Feigley v. Baltimore Transit Co.

• Decision Date: 31 July 1956
• Docket Number: No. 189,189
• Citation: 211 Md. 1,124 A.2d 822
• Parties: Fannie FEIGLEY v. BALTIMORE TRANSIT COMPANY.
• Court: Maryland Court of Appeals

Page 1

211 Md. 1

124 A.2d 822

Fannie FEIGLEY v. BALTIMORE TRANSIT COMPANY.

No. 189.

Court of Appeals of Maryland.

July 31, 1956.

Dissenting Opinion Aug. 3, 1956.

W. Hamilton Whiteford, Baltimore, for appellant.

Hamilton O'Dunne, Baltimore (George P. Bowie and J. Sarsfield Sweeny, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

BRUNE, Chief Judge.

The plaintiff, Fannie Feigley, was injured while a passenger on a street car of the Baltimore Transit Company as a result of a sudden stop which threw her to the floor as she was walking to an exit preparatory to leaving the car at the next intersection. The plaintiff brought suit to recover damages, and the case was tried before Judge Niles and a jury. The defendant produced the testimony of the motorman and of two disinterested witnesses to show that the sudden stop was due to a motorist cutting in ahead of the street car. The trial resulted in a verdict and judgment for the defendant, and the plaintiff appeals from that judgment.

There were no exceptions to the court's instructions, and the only questions presented by this appeal arise from rulings on evidence.

A day or two after the accident a 'representative' of the Transit Company, whose exact position with that Company is not shown, visited and interviewed the plaintiff and her daughter, who had been on the street car with the plaintiff. He obtained a statement of their version of the accident, which he took down and which the daughter signed.

At the trial the daughter was asked what other conversation took place with the Transit Company's representative to which she replied: 'He told us that we were on the street car and they would be responsible for everything, and said the fact they didn't know, the conductor said a car ran in front of him which caused him to put the emergency on * * *.' The defendant then interposed an objection, which was sustained; but after discussion at the bench between the Judge and counsel out of the hearing of the jury, the Judge said that he would hold the matter and rule on it later.

On cross-examination, Miss Feigley, the daughter of the plaintiff, was handed the statement and identified her signature to it and was then asked to read it. She read it over to herself, said 'No' when she came to some passage and was then questioned about the statement, and a part of it was read aloud to her. She said that the statement was inaccurate in two respects and that another part of it was not worded as she would have worded it. The inaccuracies in the written statement which she pointed out were assertions (a) that the motorman had put her mother in a seat after her fall, and (b) that her mother had not reached the center exit before the fall. The portion which the witness said she would have worded differently related to the interval between the first 'stopping jerk' and the second. The second was the one which caused the witness and the plaintiff to fall. Both in her direct testimony and on cross-examination in explaining her criticism of the wording of the statement, she asserted that the car had great momentum between the first and second 'stopping jerks.' In the written statement it was said that 'the car went along normally and when it neared out stop we got up * * *.' No mention was made of momentum, but the two 'stopping jerks,' the second of which was the more severe, were mentioned.

Following this cross-examination, the plaintiff's counsel again sought to go into the entire conversation between the Transit Company's representative and Mrs. and Miss Feigley. The Court refused to permit him to do so. Plaintiff's counsel followed this up with a proffer to show that Mr. Deibel, the Transit Company's representative, in connection with the taking of the statement had said 'that the motorman did not know who the car was that had cut him off, that if they did know who it was that that person would be jointly responsible with the Transit Company, but inasmuch as they did not know who it was the Transit Company would be liable, would take care of her expenses, and for her to let him know from time to time as they went along what the expenses were, and that on subsequent conversations Mr. Deibel told the witness--that is as far as it goes with this witness.' The Court rejected the proffer on the ground that the mere fact that the statement was taken by a representative of the Transit Company did not show authority to make promises on its behalf, and also pointed out that the witness had testified that the statement was correct except as to the motorman putting the plaintiff on the seat and in not mentioning the speed of the car. (No reference was made to the other alleged inaccuracy as to whether the plaintiff had or had not reached the exit.) The plaintiff urged 'that the promises of the investigator with respect to the assumption of liability of the Company could possibly be construed as consideration or inducement for making the statement.'

The plaintiff claims that the ruling of the Court in excluding the proffered testimony is erroneous (1) because the offer to assume liability was an admission of liability, (2) because the entire conversation should have been admitted under the rule of verbal completeness, and (3) that it was admissible to explain inconsistencies between what the witness said in her signed statement and what she said in court. In support of the latter contention she restates without substantial change or elaboration her argument that it is 'conceivable' that the promises made by the Transit Company's representative with regard to the assumption of liability and payment of expenses were made as an inducement for the plaintiff and her daughter making the statements and she also asserts here that these promises would have a tendency to lull the plaintiff and her daughter into a false sense of security in making and signing the statements and to 'ease their diligence to make certain that their statements were recorded with exactitude'.

1. Alleged Admission of Liability. The appellant's argument based upon the representative's admission of liability and offer to pay expenses encounters at once the difficulty of showing that the representative was authorized to make any such admission on behalf of the Transit Company. As the trial Judge noted and as we have already pointed out, the representative's exact position with the Company is not shown. The appellant contends that 'A claims representative sent out by the Transit Company would be clothed with at least the apparent authority to discuss questions of liability and settlement with claimants as this is the very essence of his duties.' She then argues that the acts of an agent within the apparent, but not real, scope of his authority are binding upon his principal where loss would otherwise result to one who in good faith relied on such apparent authority. The applicability of this last argument is not apparent. If we assume that the representative had apparent authority to discuss liability and settlement, and that the plaintiff relied upon it, there is nothing to show that she suffered or would suffer loss as a result of such reliance.

This brings us back to the question whether or not the representative was in fact authorized to make an admission of liability on behalf of the Transit Company. No evidence was offered to prove such authority, other than the bare facts that he interviewed the plaintiff and her daughter and took a statement from them and in so doing he was acting as an agent for the Transit Company. This is not sufficient for the purpose. See: New York and Baltimore Transportation Line v. Lewis Baer & Co., 118 Md. 73, 84 A. 251, in which it was held that a statement by the local freight agent for a railroad of the justness of the claim of consignees of a shipment and of the willingness of his company to pay it was not admissible in evidence where it was not shown that he had the authority to pay, settle or even admit the payment of a claim by the company or that he was permitted by the company to hold himself out as having such authority (and later testified that he did not have such authority); Hoffman v. Cumberland Valley R. Co., 85 Md. 391, 37 A. 214, cited in the New York and Baltimore Transportation Line case, which held proof of authority of a station agent to make a contract involving liability beyond the carrier's own line to be necessary; American Towing & Lightening Co. v. Baker-Whiteley Coal Co., 111 Md. 504, 75 A. 341, in which a statement by the secretary of a corporation that a hawser used by the corporation in towing certain scows was an improper one and that the loss was due to its use, was held inadmissible; Potts v. Armour & Co., 183 Md. 483, 39 A.2d 552 (cited by both parties), in which it was held that statements by employees of the defendant, including its local plant manager, made to the injured person that everything would be taken care of, where the plant manager testified that claims had to be investigated and reported to the home office and that he had no 'specific authority' to settle claims was held legally insufficient to be considered as an assumption of liability by the defendant.

In the Potts case, the Court cited Billotti v. Saval, 165 Md. 563, 168 A. 890, in support of the rule that a definite promise to pay damages made by a person involved in an accident may constitute an implied admission of fault. A similar ruling was made in Brown v. Patterson, 141 Md. 293, 118 A. 653, in which the defendant made actual payments for medical expenses of the plaintiff. Both of these cases, however, involved defendants who were personally involved in the accidents and their own acts or statements, not the statements of agents who were not shown to have authority to make admissions to bind their principals.

On the lack of proof of authority of the agent to bind the principal by an admission of...