Keitz v. National Paving & Contracting Co., 242
| Decision Date | 30 July 1957 |
| Docket Number | No. 242,242 |
| Citation | 134 A.2d 296,214 Md. 479 |
| Parties | Ernest H. KEITZ v. NATIONAL PAVING and CONTRACTING CO. et al. |
| Court | Maryland Court of Appeals |
Everett L. Buckmaster and George L. Clarke, Baltimore (George W. White, Jr., and Buckmaster, White, Mindel & Clarke, Baltimore, on the brief), for appellant.
Franklin G. Allen, Baltimore (Piper & Marbury and Jesse Slingluff, Jr., Baltimore, on the brief), for appellee.
Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.
Ernest H. Keitz brought suit in the Court of Common Pleas of Baltimore City for injuries he received when the bus he was operating collided with a dump truck operated by Lloyd Ogle. He named as defendants: Ogle; Elizabeth May Sudbrook, who was the owner of the truck operated by Ogle and his general employer; Redmond Sudbrook, the son of Elizabeth May Sudbrook, who managed her trucking business; and the National Paving and Contracting Company (National), the company for which the truck was hauling at the time of the accident. The trial judge directed a verdict in favor of Redmond Sudbrook and National, and the jury returned a verdict for the sum of $70,000 in favor of the plaintiff against the defendants Ogle and Elizabeth May Sudbrook (Sudbrook). It is from these three judgments that the plaintiff below--the appellant here--has appealed.
On July 25, 1955, at about 10:10 in the morning on a clear day, a dump truck owned by Sudbrook and being driven by Ogle in a southerly direction on Pimlico Road north of its intersection with Greenspring Avenue, in Baltimore, crossed over to the left of the center of the road and crashed head on into a bus owned by the Baltimore Transit Company and operated by its driver, Keitz, in a northerly direction on Pimlico Road. Keitz was severely hurt in the mishap and suffered injuries which required the amputation of his left leg below the knee. Ogle admitted that Keitz's bus was entirely on its own side of the road, that Keitz did not have one thing to do with the accident except that he happened to be unfortunate enough to be there, and that at the point of the accident, Keitz had gotten as far off on his own side of the road as he could get.
On the morning of the accident, Ogle was informed by Melvin Campbell, one of Sudbrook's mechanics, that National wanted a load of limestone or filler dust from Harry T. Campbell, Texas, Maryland. Ogle picked up 17,500 pounds of the material at Campbell's and was hauling it to National when the accident occurred. When he picked up the load, he receipted for it by signing his own name on National's behalf on a ticket or slip made out to National. Limestone or filler dust is powdery and because it shifts like water, especially when brakes are applied suddenly, it is called a 'wet load.' A shift in the load could throw the truck out of control, Ogle stated, and although he admitted that it did shift on this occasion when he applied his brakes, he testified that this had nothing to do with the accident.
National was in the business of manufacturing asphalt paving material at 4200 Menlo Drive, Baltimore, Maryland, where it operated an asphalt mixing plant and maintained road equipment which was parked there, trucks and the 'usual contractor's manufacturing equipment'. In connection with its business, National operated thirteen to fifteen trucks of which eight were dump trucks. Its fleet of dump trucks and drivers was wholly inadequate for its needs and, except when its business was closed down because of the weather from November to March or April, it was forced to hire additional dump trucks and drivers daily from Sudbrook. In 1955, all of National's additional trucks and drivers were furnished by Sudbrook.
The five trucks hired from Sudbrook were owned by Mrs. Sudbrook, who took over the business previously operated by her husband before his death in October, 1946. Although Mrs. Sudbrook kept the books of her business, she entrusted its active management to her son, Redmond. While Sudbrook furnished trucks and drivers to a few other concerns to haul materials required in their businesses, Sudbrook's principal patron was National and in 1955, as in 1946 when Sudbrook took over the business, National was responsible for about 80% of Sudbrook's business.
In addition to furnishing trucks and drivers to National since 1946, Sudbrook sent men to fill various jobs for National, such as a shovel or roller operator, or to take the places of absent employees whenever National needed them. Between November 20 and December 15, 1955, Sudbrook had two men there 'pretty near steady' until the plant shut down. Redmond himself repaired National's trucks and equipment, went out on call if National's trucks broke down and ordered required parts for National's account. National and Sudbrook also agreed that Sudbrook's trucks, at least when being used by National in its business, should have metal signs affixed to the sides of the dump trucks bearing National's eagle emblem and name.
National's business dealings were carried on with Sudbrook with close and friendly informality and while there was no written contract between them, they did have certain verbal agreements which they both adhered to in their business dealings together. In the oral agreement that they made at the beginning of each year, it was agreed that Sudbrook was to be responsible for furnishing the additional dump trucks needed daily by National and, at the same time, the parties also set tonnage prices for the year for hauls into National's plant from 'Linthicum, Campbell's and Masonville'.
Arrangements for each day's work were usually made between four and five o'clock in the evening when Redmond either telephoned or walked the short distance between their premises. When National hired the trucks, it was not for a particular job but by the day. If they were hauling by the hour, National paid Sudbrook by the hour, and if by the ton, Sudbrook was paid by the ton. Almost every Friday, National paid Sudbrook a 'substantial amount' on account and paid in full at the end of the month.
Although Sudbrook's drivers would turn over their tonnage or hourly tickets at the end of each day to Sudbrook, the men were paid by Sudbrook on a weekly salary basis, whether they worked or not. Sudbrook hired and fired her drivers, collected withholding and social security taxes from their salaries and paid for their workmen's compensation. Each driver was assigned to a particular truck, which he himself serviced at Sudbrook's premises in respect to gas, oil and water in the radiators. Ogle, it so happened, was not using his regular truck at the time of the accident but was filling in for an absent driver and had not driven the particular truck before.
After Redmond Sudbrook ascertained the number of trucks National wanted for the next day's work, he told the drivers in the evening what they were supposed to do the following morning, and if they were told to go to National or to haul asphalt for, or bring stone or dust from the quarry to, National, anyone in authority at National could tell them what to do. In fact, it was 'agreed on', a 'regular part of the procedure', and 'by agreement' that Sudbrook's drivers were to take and obey whatever orders or instructions were given them by National's superintendents or other supervisory personnel. Ogle's own testimony in this connection was in part as follows
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'If Mr. Sudbrook would give me orders the evening before, say, Go to Greenspring and bring in a load of stone, I'd bring in a load of stone; and maybe they (National) wouldn't want a load of stone, they would need some other material, I'd go to Brooklyn.
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'I'd get my orders in the evening, after work, and, like I say, when I came in next morning, if it was changed, I'd take my orders then from either Mr Wirtz, or some representative from National Paving Company.
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