General Automobile Owners' Ass'n, Inc. v. State

• Decision Date: 11 January 1928
• Docket Number: 62.
• Parties: GENERAL AUTOMOBILE OWNERS' ASS'N, INC., v. STATE, TO USE OF PENN.
• Court: Maryland Court of Appeals

140 A. 48

154 Md. 204

GENERAL AUTOMOBILE OWNERS' ASS'N, INC., v. STATE, TO USE OF PENN.

No. 62.

Court of Appeals of Maryland

January 11, 1928

Appeal from Circuit Court, Washington County; Frank G. Wagaman Judge.

"To be officially reported."

Action by the State, for the Use of Anna Penn, widow of John Penn against the General Automobile Owners' Association Incorporated. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted.

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

Walter V. Harrison and Wallis Giffen, both of Baltimore, for appellant.

Bruce C. Lightner and D. Angle Wolfinger, both of Hagerstown, for appellee.

PATTISON J.

This is an appeal from a judgment recovered against the appellant, the General Automobile Owners' Association, by the appellee, Anna Penn, for the death of her husband, John Penn.

The declaration, in substance, alleged that John Penn, an employee of the defendant, was on the 6th day of March, 1927, ordered by B. F. Mantz, manager of defendant's Hagerstown office, where Penn was at the time employed as an agent or solicitor, to accompany him (Mantz) to the defendant's office in the city of Baltimore, upon the business of the defendant; that while on their way to Baltimore, in Mantz's automobile, driven by Mantz, the automobile skidded and ran off the state road because of the alleged negligent driving of Mantz, causing the death of Penn.

The chief defense made was that Penn was not required or ordered by Mantz to accompany him to the office of the defendant, in the city of Baltimore, and was not at the time of his death on his way to Baltimore city upon the business of the defendant, and was, in no way, at such time, acting in the scope of his employment, and further, that B. F. Mantz was not ordered or directed to come to the Baltimore office of the defendant and was not acting within the scope of his employment, but was acting in pursuance of his own business at the time of the accident resulting in the death of Penn.

In the trial of the case, twelve exceptions were taken to the court's rulings upon the evidence, and one to its rulings on the prayers.

The plaintiff offered one prayer, a damage prayer, which was granted. The defendant offered seven prayers. Of these, Nos. 1, 1A, 5, and 6 were rejected, while its second, third and fourth prayers were granted. Its Nos. 1 and 1A prayers asked for a directed verdict in favor of the defendant. The first of these asked that the jury be instructed that there was no evidence legally sufficient to entitle the plaintiff to recover, while the other asked that under the pleadings there was no evidence legally sufficient to enable the plaintiff to recover. His prayer was, we assume, offered as a variance prayer, but as the variance between the pleading and evidence is not set out with particularity, it cannot be treated as a variance prayer.

The first prayer, in our opinion, was properly rejected.

The record discloses that Mantz was manager of the Hagerstown office of the defendant company, and the employees of that company in its Hagerstown office, including Penn, were under his supervision and control. As expressed by Charles R. Houpt, secretary and treasurer of the defendant's association, in the city of Baltimore, "He [Mantz] hired and fired" such employees.

Anna L. Penn, widow of John Penn, and a witness offered by the plaintiff, testified without objection that the night before the accident her husband told her that he, Mantz, together with James Lesher and Richard M. Spielman, two other employees of the Hagerstown office, were on the next day going to the Baltimore city office of the association, where they had been called upon the business of the defendant's association, and on the next morning, Sunday, March 6th, he left his home at 6 o'clock to go with Mantz and others to the city of Baltimore.

James Lesher testified that he, with Spielman, Penn, and Mantz, left Hagerstown between 7:30 and 8 o'clock a. m. on that morning for Baltimore, in Mantz's car with Mantz driving it. When they reached Frederick, they got out, went into a restaurant, and got a cup of coffee. Mantz had a bottle of whisky; this he emptied into the coffee which he and Penn drank. Thereafter Mantz showed the effects of intoxication. He further testified that the roads that morning were slippery. "It would rain and clear up a little and rain again, raining practically all the morning. We left Frederick and started on our way to Baltimore, and about a mile and a half on the other side of New Market, he [[[Mantz] lost control of the machine and it went down an embankment." The witness testified that there was a curve in the road at the point of the accident, and the machine skidded in attempting to make the turn. In going down the embankment, the car turned over three times; that "at the time of the accident Mr. Mantz was driving about 40 miles an hour. As the car left the road, Mr. Penn said, 'We are gone' and started to get out, and I began to prepare myself, I did not see him get out. When I next saw Mr. Penn, after I had gotten out of the car, he was on the ground, between the left running board and the ground. * * * We put Mr. Penn in a car, and Mr. Spielman went with him to the hospital," where he died on March 18, 1927. On cross-examination, Lesher testified that the trip to Baltimore was first suggested to him on Saturday night, about 7:30 p. m.

"Me and Mr. Penn and Mr. Frank Mantz were together at the time, in the Hagerstown office.

Q. What was the occasion of your visit to Baltimore? A. To go down on some business with some salesman causing trouble at this office.

Q. What did this trouble relate to? A. Related to Mr. Mantz' job.

Q. Was that the only purpose of your going to Baltimore? A. Yes; I suppose.

Q. Did you regard Mr. Mantz' position as being in jeopardy by reason of something that some one else did? A. Yes.

Q. But you were on no business of your own? A. No, sir; just ordered by him to go down.

Q. Did he force you to go? A. He told us we had to go to Baltimore.

Q. Did you regard it obligatory to go to Baltimore, as a result of this alleged order from Mr. Mantz? A. Yes, sir.

Q. But you were going on no business of your own? A. No, sir.

Q. That applied equally as well to the other occupants of this car? A. Mr. Penn had to go, it seemed; it was ordered.

Q. What did Mr. Mantz say to Mr. Penn in your presence? A. He told him he wanted him to go to Baltimore the following morning; that Purnelli had caused some disturbance. Penn said, 'No, I won't go;' he said, 'Penn, you got to go down and help me out,' so finally Penn decided to go down."

The witness further testified:

"We were supposed to get at the office [Hagerstown office] at 7 o'clock a. m. I got there a little late, and when I went there they were over, Mr. Mantz, Penn, and Spielman, when I come in, they said something about postponing going to Baltimore, and then again we started out; something that they would stop at a club and have some good beer on the way down and could catch Mr. Houpt in his office. * * *"

"Q. Had Mr. Mantz refused to go because of bad weather in the restaurant? A. He didn't refuse to go, he said he didn't think we would go, and I regarded this as final. I went to go out of the restaurant to go to the office, and we got in the car, and Mr. Mantz said, 'Come on, we are going to Baltimore,' so I put on my overcoat and got in with him, Penn, Spielman, and myself were together."

When asked did he think that he (Mantz) was capable of driving this automobile, he said:

"To tell the truth, I did not like the way he drove it. * * * I didn't say he was drunk. At the time of the accident he was driving about 40 miles an hour, and I regarded that unduly fast, considering the condition of the road, but no objection was raised as to the speed. Mr. Penn was sitting in front, and I was on the rear seat with Mr. Spielman."

Mr. Mantz, when called to the stand by the defendant, testified that on Saturday, when expecting to go to Baltimore on the next day, Sunday, he wired Mr. Foster of the Baltimore office, telling him that he would be at the Baltimore office on the next day.

"Q. Did you tell him to be there? A. He is always there. I told him I would see him at Mr. Houpt's office.

Q. Why did you want to see him at Mr. Houpt's office? A. That was Saturday; Sunday it was an entirely different story. For the same reason that I talked to these other men on

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