Hynes v. Wilson

• Decision Date: 06 February 1925
• Docket Number: 77.
• Citation: 128 A. 70,147 Md. 360
• Parties: HYNES v. WILSON.
• Court: Maryland Court of Appeals

128 A. 70

147 Md. 360

HYNES v. WILSON.

No. 77.

Court of Appeals of Maryland

February 6, 1925

Appeal from Baltimore City Court; Chas. W. Heuisler, Judge.

Action by Ruth Wilson against Mary G. Hynes. Judgment for plaintiff and defendant appeals. Affirmed.

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

William D. Macmillan, of Baltimore (Semmes, Bowen & Semmes, of Baltimore, on the brief), for appellant.

Edward J. Colgan, Jr., of Baltimore (Jos. H. A. Rogan, of Baltimore on the brief) for appellee.

PARKE J.

The six exceptions to the court's rulings on the evidence and the seventh exception to its action on the prayers all present the question of whether the evidence was legally sufficient to show that the son of the appellant was using her automobile as her agent at the time of the accident which caused the injury for which the appellee recovered against both the appellant and her son.

The automobile was owned by the appellant, and it was driven by her son when the injury to the appellee was inflicted through his negligence. The mother was not in the automobile when the appellee was struck, and was in no way responsible to her in damages, unless there existed a legal relation with her son of principal and agent. The testimony on her part is that the son's use of the automobile was wholly a matter of his own pleasure and for his own purpose, and, if there was nothing to the contrary in the case, the appellee should not have been permitted to recover against the appellant. Myers v. Shipley, 140 Md. 380, 116 A. 645, 20 A. L R. 1460.

There were, however, certain admissions of the appellant, which were introduced in evidence by the appellee, that were sufficient in the opinion of the lower court, not only to be given in evidence, but to carry the case to the jury for its determination. The rulings on these admissions are the grounds of this appeal.

The son was a painter 35 years old, unmarried, and lived with his mother. She could not drive the automobile, and whenever she took a ride the automobile was driven by her son, who had her full permission to use it as he liked. After proving the accident, the ownership of the automobile, and that the son was its negligent operator at the time of the accident, and that there were two other men with him, the appellee offered certain admissions of the appellant. The materiality and relevancy of these admissions, in the first place, and their legal sufficiency to cast legal responsibility on the appellant, in the second place, are but divisions of the same question, and, therefore, the exceptions may all be considered together.

The first admission was at the hospital on a visit to the appellee by the appellant and her son, who was present and heard this conversation, which was testified to by the appellee, who said:

"She came in. She said, 'Is this Mrs. Wilson?' I said, 'Yes, ma'am.' It was about 8:15 at night. She said, 'Well, this is my boy that run you down.' I said, 'Yes, ma'am.' She said, 'I am awfully sorry that this happened.' I said, 'Well, I know I am; it is awful suffering for me, and I lowered the cover and showed her the position and condition of my leg as it lay in the cast.' She said to me, she said, 'It is awful.' She said, 'He is a good boy.' I said, 'I have no reason to doubt that he is, the place he was at.' She said, 'Oh, the reason he was there,' she said, 'he doesn't drink, but he had an appointment with a man to go with him to sell the car. It is my car, but I could not run it, and he was out with this man trying to sell this car. That is the reason that Roy was there, but he is a good boy and don't drink.' And he also made the same statement."

Later on in response to the inquiry, if the son had taken part in the conversation, the appellee stated:

"He only said that he was sorry that it happened, and the reason he was there is that he was trying to sell the car for his mother."

The second admission was in January after the appellee had been taken home. The appellant was alone, and said, according to the evidence of the appellee:

"* * * She hoped

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