International Co. v. Clark

• Decision Date: 15 January 1925
• Docket Number: 29.
• Citation: 127 A. 647,147 Md. 34
• Parties: INTERNATIONAL CO. v. CLARK.
• Court: Maryland Court of Appeals

127 A. 647

147 Md. 34

INTERNATIONAL CO. v. CLARK.

No. 29.

Court of Appeals of Maryland

January 15, 1925

Appeal from Baltimore City Court; Henry Duffy, Judge.

"To be officially reported."

Action by Mary A. Clark against the International Company, a body corporate. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before PATTISON, ADKINS, OFFUTT, DIGGES, BOND, and PARKE, JJ.

L Wethered Barroll, of Baltimore (Wm. L. Marbury, of Baltimore on the brief), for appellant.

George W. Cameron, of Baltimore, for appellee.

DIGGES J.

The appellee in this case obtained a verdict by the jury in the Baltimore city court against the appellant on April 25, 1924 for $1,600, and on May 2, 1924, after the motion made by the appellant for a new trial had been withdrawn, judgment was entered on the verdict in said court for the sum of $1,600, with interest from April 25, 1924. It is from this judgment that the appeal in this case is taken. The record contains two exceptions taken by the defendant below, the first to the instructions of the court on the law as represented by the prayers of the plaintiff and defendant, and the court's own instructions, and the second to the overruling of a motion by the defendant for a judgment of non pros. made during the course of the argument before the jury. The plaintiff offered two prayers and the defendant five. The court's action upon these resulted in the granting of the plaintiff's second prayer and the defendant's first, third, and fourth prayers, the giving of instruction by the court of its own motion, and the refusal of the defendant's second and fifth prayers. The plaintiff's second prayer, which was granted, was a proper instruction as to the measure of damages, in the event the jury should find for the plaintiff, and the action of the court in respect to this prayer was correct. The instructions under which the jury considered the case, if it should have been allowed to consider it at all, were granted at the instance of the defendant, which, together with the court's instruction, was a correct statement of the law applicable to the case and presented it to the jury in as fair and favorable light to the defendant as it was entitled to have. The only question involved in this appeal in respect to these instructions is the correctness of the court's ruling in rejecting the defendant's second and fifth prayers, which were demurrers to the evidence and sought to have the case wihdrawn from the jury.

The case grew out of an accident in which the plaintiff was injured by an automobile truck belonging to the defendant, and driven at the time of the accident by one Gottlieb Flieg, who was employed generally by the defendant; the single question to be considered being whether or not at the time of the accident the driver was acting within the scope of his employment, and was the agent or servant of the defendant at that time. If he was acting within the scope of his employment at the time of the accident, the defendant is liable, and the second and fifth prayers of the defendant were properly rejected; if on the other hand at the time of the accident Flieg was acting outside of the scope of his employment, and was not engaged either directly or indirectly in the furtherance of his master's business, the defendant is not liable, and the court erred in rejecting the prayers of the defendant seeking to withdraw the case from the jury. A statement of the law covering this class of cases at this time would serve no useful purpose, and would only be a repetition of what this court has said in a line of cases dealing with this question, and it is only necessary to refer to the opinions in the cases of Vonderhorst Brewing Co. v. Amrhine, 98 Md. 411, 56 A. 833; Stewart Taxi-Service Co. v. Getz, 118 Md. 171, 84 A. 338; Symington v. Sipes, 121 Md. 313, 88 A. 134, 47 L. R. A. (N. S.) 662; Stewart Taxi-Service Co. v. Roy, 127 Md. 70, 95 A. 1057; Debelius v. C. H. Benson & Co., 129 Md. 693, 100 A. 505; Pollock v. Watts, 142 Md. 403, 121 A. 238; Dearholt v. Merritt, 133 Md. 323, 105 A. 316; Jordan-Stabler Co. v. Tankersly, 146 Md. ___, 126 A. 65; and Salowitch v. West Baltimore Wall Paper Co. (being No. 19, October term of this court, 1924), 127 A. 643, in which cases the question has been exhaustively considered and the law applicable thereto clearly defined. Since these cases, there is very little room for doubt as to the law, and the only question which arises is the application of the rules therein laid down to the facts of any particular case.

The cases referred to firmly establish the law as being that, if the automobile causing the accident belongs to the defendant, and is being operated at the time of the accident by one in the general employ of the defendant, there is a reasonable presumption that at such time he was acting within the scope of his employment and in furtherance of his master's business, and that this presumption is only prima facie, and may be rebutted and overcome by evidence adduced during the trial, by the testimony of any of the parties to the suit. It is equally well settled that, where the evidence offered to establish facts which would rebut this presumption is contradictory, the question is one for the jury; but, where the facts so offered are undisputed and uncontradicted, it becomes properly a question for the court. It might be added that, where the facts are such as to leave the court in doubt as to this question, the proper course is to submit the case to the jury; it being their function to pass upon the weight of the evidence.

We will now examine the facts in the case under consideration to determine the applicability of the law to them, as decided and laid down by the cases above referred to. The record discloses that the accident here occurred near the northwest intersection of Calvert street and Mount Royal avenue in the city of Baltimore between 11 and 12 o'clock on the night of August 1, 1923; that the plaintiff, appellee here, accompanied by a woman friend, had just previous to the time of the accident walked north on St. Paul street to Mount Royal avenue, then east on Mount Royal avenue to the southwest corner of Calvert street and Mount Royal avenue, and was then attempting to proceed in the track of pedestrians to cross Mount Royal avenue from the southwest corner of that avenue and Calvert street to the northwest corner thereof, and shortly before reaching the north curb of Mount Royal avenue was struck, knocked down, and injured by the defendant's truck driven by Flieg, who was at that time in the defendant's general employ. The question of the negligence of the driver of the truck, and whether the plaintiff was struck and injured by this particular truck driven by Flieg, were questions submitted to the jury under the granted instructions, and the evidence on these points was amply sufficient for the jury to render the verdict which they did. The appellant, however, contends that its prayers withdrawing the case from the jury should have been granted, because the driver at the time of the accident was not acting within the scope of his employment as agent and servant of the defendant.

The evidence above recited undoubtedly created the presumption that he was so acting, and it was incumbent upon the defendant to overcome this presumption. Does the evidence in this case conclusively show the defendant has met the burden thus cast upon him is the real question for decision, the answer to which must be found by an examination of the testimony on this point. Without burdening this opinion with the detailed testimony, we find that the defendant is engaged in the business of bakery and confectionery supplies, conducting said business at 309-311 Exchange Place; that in the conduct of said business it owned and used two White trucks and the Ford truck which was being driven by Flieg at the time of the accident; that, among other employés, in addition to Flieg, the defendant employed Raymond Short, who had been engaged by it some time in June of that year; that at the time Short was first employed he was unable to operate a truck, but subsequently, on July 2, 1923, he obtained an operator's license; that the Ford truck was purchased by the defendant in June, and at the time of the purchase Flieg went to the place of business of the party from whom it was purchased and drove same to defendant's store, and under instructions of Mr. Smith, the manager of the defendant, began instructing Short in the operation of the Ford truck; that, after Short learned to operate the truck, Flieg's duties were that of a general utility man, sometimes driving one of the White trucks on the business of the defendant, or any other truck when the regular chauffeur was sick or absent; that, according to the witnesses for the defendant, Short and Flieg, their duties were practically the same, that of running the trucks and making deliveries for the defendant, and, when no deliveries had to be made, working inside of the store and doing generally what was necessary about the business.

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