Jordan Stabler Co. of Baltimore City v. Tankersly

• Decision Date: 15 August 1924
• Docket Number: 3.
• Citation: 126 A. 65,146 Md. 454
• Parties: JORDAN STABLER CO. OF BALTIMORE CITY v. TANKERSLY.
• Court: Maryland Court of Appeals

126 A. 65

146 Md. 454

JORDAN STABLER CO. OF BALTIMORE CITY v. TANKERSLY.

No. 3.

Court of Appeals of Maryland

August 15, 1924

Appeal from Baltimore City Court; Eli Frank, Judge.

"To be officially reported."

Action by Elmer Tankersly against the Jordan Stabler Company of Baltimore City, otherwise known as the Jordan Stabler Company. Judgment for plaintiff, and defendant appeals. Affirmed.

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

William L. Henderson and Aubrey Pearre, Jr., both of Baltimore (Stewart & Pearre, of Baltimore, on the brief), for appellant.

George Arnold Frick, of Baltimore, for appellee.

DIGGES J.

The exceptions in this case consist of two, the first to the admissibility of evidence, and the second to the ruling of the court on the prayers. At the conclusion of the evidence the plaintiff offered 10 prayers and the defendant 13. The court granted the plaintiff's fifth, sixth, seventh, and eighth prayers and overruled the defendant's special exceptions to the plaintiff's fifth, seventh, and eighth prayers, and rejected the defendant's first, second third, fourth, fifth, sixth, eleventh, and thirteenth prayers, and granted the defendant's seventh, eighth ninth, and twelfth prayers. The court's action in this respect forms the second bill of exception. The verdict being for the plaintiff, the defendant has taken this appeal. At the argument in this court the appellant (defendant below) abandoned the first exception and relied solely upon the second bill of exception, relating to the court's ruling upon the prayers, and particularly upon the court's action in overruling its special exception to the granting of the plaintiff's eighth prayer and the refusal of the court to grant the defendant's fourth, fifth, and sixth prayers.

The material facts of the case are undisputed and show that the defendant is a corporation engaged in the grocery business in Baltimore City. It has two locations in said city from which its business is conducted; the location of the principal place of business being 701-705 Madison street, and its branch store being in Roland Park. That the business of the branch store is carried on separately and distinct, in so far as details of management are concerned, the manager of that branch having full authority in the selection of employees. That this branch makes a large number of deliveries to its customers in the vicinity of Roland Park and some deliveries to customers in other parts of the city. That there are used for making such deliveries trucks belonging to the defendant and operated by chauffeurs or drivers employed by the defendant. On February 8, 1921, at about 6:15 p. m., the plaintiff, while driving a Ford coupé accompanied by a friend, was struck by one of the trucks owned and operated by the defendant from its Roland Park branch and driven at that time by Samuel Chapman, an employee of the defendant. As a result of this collision the plaintiff was severely injured and his automobie practically demolished. The accident occurred at the intersection of Whitelock street and Druid Hill avenue. At the time the plaintiff was driving south on Druid Hill avenue on the west or right side thereof, and had proceeded two-thirds of the distance across Whitelock street when he was struck on his left side by the defendant's truck approaching from the plaintiff's left and proceeding along on the south or left side of Whitelock street, and without lights. The plaintiff's automobile was running at the rate of 12 or 15 miles an hour, and as he approached Whitelock street he sounded his horn and looked to his right, but saw nothing approaching from that direction. It is unnecessary to detail further the evidence in respect of the accident, because it is practically admitted by the defendant that the accident was occasioned by its truck at the time being driven by Chapman, one of its employees, and that there was gross negligence on the part of the driver and no contributory negligence on the part of the plaintiff, and further that the plaintiff suffered such injury and damage as testified to by the witnesses and for which the jury awarded the sum of $1,200.

The sole question to be determined is: Was Sam Chapman at the time of the accident acting as the agent of the defendant and within the scope of his employment? If he was, the defendant is liable; if he was not, there is no liability. The evidence on this point shows that some time after 4:30 p. m. on the day of the accident Chapman proceeded to take a truckload of groceries from the defendant's place of business on Madison street to its Roland Park branch; that on his route he met two young colored acquaintances, Warren Clark and William Wilson, and asked them to accompany him to Roland Park; that they got in the truck and went with him to the Roland Park branch of the defendant, and assisted Chapman in unloading. After this was completed, Chapman was told that there were four orders to be delivered on his way to the garage where the truck was kept at night. These orders were to be delivered at the following places: One on University Parkway, near Roland Park, two at the Greenway Apartments Charles and Thirty-Fourth streets, and one at No. 16 West Mount Vernon Place, the garage where the truck was kept at night being located in the 1100 block of Division street. These orders were placed in the truck, and Chapman was told to make the deliveries and then take the truck to the garage for the night. Chapman left the Roland Park branch at about 5:30 p. m., accompanied by Clark and Wilson. He made delivery of the articles to be delivered on University Parkway and the Greenway Apartments, and then proceeded south on St. Paul street to Lanvale, west on Lanvale to Charles street, then to North avenue, to Eutaw Place, thence to Whitelock street, to the intersection of Druid Hill avenue, where the accident occurred, which point was about 10 or 12 blocks from the garage. The articles to be delivered at No. 16 West Mount Vernon Place had not been delivered and were in the truck at the time of the collision. Chapman stopped on Lanvale street according to the witnesses Clark and Wilson, and put some empty bottles in the truck, and again stopped on Eutaw Place, got out of the truck, and delivered a package to a house on that street, although they did not know what it was or to whom it was delivered. Chapman ceased to be employed by the defendant from the day after the accident, and was not present and did not testify at the trial. Chapman's mother lived about one or two blocks from the scene of the accident, her home...