Fletcher v. Meredith

• Decision Date: 11 June 1925
• Docket Number: 46.
• Citation: 129 A. 795,148 Md. 580
• Parties: FLETCHER v. MEREDITH ET AL.
• Court: Maryland Court of Appeals

129 A. 795

148 Md. 580

FLETCHER v. MEREDITH ET AL.

No. 46.

Court of Appeals of Maryland

June 11, 1925

Appeal from Circuit Court, Anne Arundel County; Robert Moss, Judge.

"To be officially reported."

Action by William Edward Fletcher against Carey L. Meredith and another, trading as the Meredith Lumber Company. Judgment for defendants, and plaintiff appeals. Affirmed.

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

James M. Munroe, of Annapolis, for appellant.

Winson G. Gott, of Annapolis, for appellees.

BOND C.J.

The sole question presented is whether, upon the evidence in this case, it could be found as a matter of fact that the driver of a truck of the appellees, which struck and injured the appellant, was at the time acting within the scope of his employment. The case was tried before the court below without a jury, and at the conclusion of the testimony the court ruled that upon the uncontradicted evidence it appeared that the driver was not so acting within the scope of his employment, and that the plaintiff was therefore not entitled to recover against his employer. No question of negligence has been argued, and we are informed by the appellant in his brief that testimony not bearing on the question of employment just stated has been omitted in making up the record. The result is an admirably succinct presentation of that single ground of decision.

The undisputed facts are that the appellant was struck by an automobile truck as he was walking with his bicycle, at night, along the side of the state road near Parole in Anne Arundel county, and that the truck was owned by the appellees and was being driven by their chauffeur, Frank Dorsey. Dorsey and the appellees all testified that on the morning of that day he (Dorsey) had asked Mr. William Meredith to lend him a Ford truck belonging to the firm to go to the funeral of an uncle of Dorsey's near McKendree, in the lower part of the county, and that Mr. Meredith had said the Ford truck could not be spared, but that there was a load of lumber to be delivered at Mason's Beach, in that same direction and Dorsey could take the truck he usually drove, deliver the lumber, and then take the rest of the afternoon off and use the truck to go to the funeral. This plan was carried out Dorsey taking his sister on the truck and leaving with the lumber early in the afternoon, delivering the lumber and then going on to the funeral. It was on the return to Annapolis and only a short distance from Annapolis, that the appellant was struck. It was then dark, the headlights of the truck having been lighted.

It is conceded by the appellant that, under the previous decisions of this court there could be no recovery by him, if the driver was at the time engaged on his own business or pleasure and not on any business of his employer. The rules of respondeat superior or agency are the only rules of common law upon which a vicarious liability of the employer might be based, and under those rules the liability can be extended only to the limits of the employer's business, Debelius v. Benson, 129 Md. 693, 100 A. 505; Whitelock v. Dennis, 139 Md. 557, 116 A. 68; Myers v. Shipley, 140 Md. 380, 116 A. 645, 20 A. L. R. 1460; Louis v. Johnson, 146 Md. 115, 125 A. 895. Therefore, if the accident had occurred while the truck was going to the funeral, beyond the place of delivery of the lumber, no question of liability of the truck owners would be raised. But recovery is sought on the theory that Dorsey had finished his own use of the truck, and had returned to the employer's business by returning toward Annapolis where the truck was kept. The argument is that the work of delivering the lumber at Mason's Beach, which was, of course, the employer's service, involved as a necessary incident the return to Annapolis, and that therefore the driver resumed the service when the funeral was over and he returned home.

The decided cases are not all in accord on the extent to which this reasoning may carry the liability of an employer. See Mastrilli v. Herz, 100 Conn. 702, 124 A. 835; Graham v. Henderson, 254 Pa. 137, 98 A. 870; Riley v. Standard Oil Co., 231 N.Y. 301, 132 N.E 97, 22 A. L. R. 1382; Donahue v. Vorenberg, 227 Mass. 1, 116 N.E. 246; Cummings v. Republic Truck Co., 241 Mass. 292, 135 N.E. 134. But the opinion of this court is that the weight of authority, and...