Goldsmith v. Chesebrough

• Decision Date: 11 February 1921
• Docket Number: 65.
• Citation: 113 A. 285,138 Md. 1
• Parties: GOLDSMITH v. CHESEBROUGH.
• Court: Maryland Court of Appeals

113 A. 285

138 Md. 1

GOLDSMITH v. CHESEBROUGH.

No. 65.

Court of Appeals of Maryland

February 11, 1921

Rehearing Denied March 3, 1921.

Appeal from Superior Court of Baltimore City; Henry Duffy, Judge.

Suit by Harry P. Chesebrough against Joseph Goldsmith. Judgment for plaintiff, and defendant appeals. Reversed without a new trial.

Argued before BOYD, C.J., and THOMAS, PATTISON, STOCKBRIDGE, ADKINS and OFFUTT, JJ.

Clifton S. Brown, of Baltimore (Emanuel E. Ottenheimer, of Baltimore, on the brief), for appellant.

L Wethered Barroll and William L. Marbury, both of Baltimore, for appellee.

PATTISON J.

The appellee, Harry P. Chesebrough, brought suit in this case to recover for personal injuries sustained by him caused by the alleged negligence of one Robert E. Talbott, an alleged servant or employee of the defendant, in the operation of an automobile at or near the corner of Baltimore and Schroeder streets, in the city of Baltimore.

The declaration alleges that on or about the 10th day of March, 1920, while the plaintiff was crossing from the pavement on the north side to the pavement on the south side of Baltimore street, at the time exercising due care and caution in so doing, the defendant, by his agent or servant in charge of an automobile, who was operating the same "in a reckless, fast, and negligent manner," caused said automobile "to run against and upon the plaintiff," thereby causing him to suffer serious and permanent injury.

The case was tried by a jury in the superior court of Baltimore City, and resulted in a verdict and judgment for the plaintiff, from which judgment this appeal is taken. At the conclusion of all the evidence, the defendant asked for an instruction directing a verdict for him because of a want of evidence legally sufficient to entitle the plaintiff to recover, but this prayer was refused.

The defendant contends that if the said automobile, owned by Talbott and his wife, and not by the defendant, was used by Talbott in the performance of the duties required of him under the terms of his employment by the defendant, it use was not only unnecessary, but was without authority from him (the defendant), either expressed or implied, and that such use was without the knowledge and the consent of the defendant.

The evidence discloses that, at the time of the accident resulting in the injury complained of, the defendant was engaged in the "house-furnishing and clothing business," at the corner of Baltimore and Gilmore streets, in the city of Baltimore, and that on the 3d day of March, 1920, and prior thereto, he had in his employ some ten or more solicitors and collectors, each confined to a particular locality of the city. These men each morning met at the defendant's place of business, and from there went in the street cars to the respective territories worked by them, and at the close of the day they returned by the cars to the defendant's store, and from there went to their respective homes.

In going from the defendant's store to the territories assigned to them, and in returning therefrom to his store in the evening, their car fare was paid by the defendant. After reaching the localities in which they worked, they practically went from door to door, or at least the calls made by them were at places in close proximity to each other. As described by the defendant, "the calls were laid close together," and in some of them he said the collector, "if he had just to go over the territory, he, by walking, could go over it four times in one day."

It was on the 3d day of March, 1920, that Talbott entered the employment of the defendant as collector and solicitor to do the work we have described in the territory assigned to him. At that time he was living on Walnut and Second avenue, near Rognel Heights, in the northwest section of the city, and was at the time, with his wife, the owner of said car, which he used in riding to and from his work in the city.

The terms of Talbott's employment must be ascertained from his and the defendant's testimony, and it is to the legal sufficiency of this testimony, as tending to show that he was authorized by the defendant to use the automobile, that said instruction asked for was directed.

It will be first stated that the evidence conclusively shows without contradiction that the use of the car was unnecessary in going from defendant's store to the territory worked by Talbott, or in working the territory after he had reached it. In fact the record discloses that he, like others, was paid so much per day for car fare in going to and in returning from his territory; and the evidence is undisputed that while at work the automobile was of no advantage to him, because of the numerous stops he was required to make at places not far removed from each other.

Talbott received $12 per week and was compensated for each sale made by him. The automobile, he stated, was used by him in driving in and out from Rognel Heights with his father-in-law, who also worked in the city, and at times in going to and from his territory, and on occasions in collecting and soliciting, although he said he did not use the machine at all for the first two weeks after the commencement of his employment; but he subsequently modified this statement by saying "not regularly." When asked by counsel for plaintiff, "What understanding did you have about the use of this machine?" he replied:

"I told him (Goldsmith) I had a machine, and he *** said, 'Well, I would not use it for quite a while for a couple of weeks or so,' for reasons that he had of his own, in regards to a solicitor that I was then going with running over the routes. And I mentioned the fact to him that I could use it and get around, and, while he did not agree with me or did not disapprove, why, I went to work and used the machine. Didn't you tell him you had a machine, and he said, 'I think that will help and will be glad to have you use it'? A. I would not say positive whether he did or not.

Q. Well, what did he say? A. I told him that I had a machine, and I said in case any time his trucks break down, or anything like that, why we could make delivery if it was quick and had to go out, which we did.

Q. And you told him that you could use the machine in making collections, didn't you? A. Yes, sir.

Q. He never made any objection to you using the machine for that purpose, did he? A. Never made any objection, and he never approved."

He was shown a paper purporting to contain a statement of what he had said to Mr. Barroll, one of the counsel for the plaintiff, which Mr. Barroll had reduced to writing, and which Talbott had signed. He was asked if it was his signature and he answered that it was. He was then asked if Mr. Goldsmith did not say to him when he told him that he had the machine, "I think that will help, and I will be glad to have you use it." His reply was:

"I would not say that it was the exact words, because I gave it to Mr. Barroll offhand, and Mr. Barroll wanted me to come over to his office right after I was up to the traffic court.

Q. Yes; he asked you to make a statement of what you knew about the case? A. Yes.

Q. Then you do not remember the exact language? A. The exact words I could not say.

Q. Well, was that not substantially what he said? A. About that."

The defendant, Goldsmith, testified that the duties of Talbott under his employment were those of collector and solicitor that he was assigned to a territory in which to work and where he solicited orders on March 10th, but at the time of the accident, which occurred late in the afternoon of that day, after the hour when the solicitors and collectors had ordinarily returned from their work to the defendant's place of business, he was at a place far...