National Trucking & Storage, Inc. v. Durkin

• Decision Date: 02 November 1944
• Docket Number: 23.
• Parties: NATIONAL TRUCKING & STORAGE, Inc., v. DURKIN (three cases).
• Court: Maryland Court of Appeals

39 A.2d 687

183 Md. 584

NATIONAL TRUCKING & STORAGE, Inc., v. DURKIN (three cases).

No. 23.

Court of Appeals of Maryland

November 2, 1944

Appeals from Baltimore City Court; Samuel K. Dennis, Chief Judge.

Action by Patrick Durkin, an infant, by Bernard Durkin, his father and next friend, and by Magdalene Durkin, and by Bernard Durkin, against the National Trucking & Storage, Inc., for injuries sustained by plaintiffs in a collision with one of defendant's trucks. The trial court submitted to the jury the question whether driver of defendant's tractor unit was acting within the scope of his employment at time of the accident, and defendant appeals.

Reversed without a new trial.

James J. Lindsay, of Baltimore (Edwin W. Wells and L Wethered Barroll, both of Baltimore, on the brief), for appellant.

Deeley K. Nice, of Baltimore (Max Sokol and Dickerson, Nice & Sokol all of Baltimore, on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN BAILEY, CAPPER, and HENDERSON, JJ.

HENDERSON Judge.

The record in this case presents three appeals from judgments obtained by Bernard Durkin, Magdalene Durkin, and Patrick Durkin, an infant, by his father and next friend, in the Baltimore City Court. The cases were consolidated for trial. All three arise out of an automobile accident that occurred on July 21, 1943, at about 11 P. M. at the intersection of Lombard and Paca Streets, in Baltimore City. Bernard Durkin was the owner and operator of a Chevrolet automobile in which his wife and infant son were riding. While driving west on Lombard street, his car was struck on the left side by an automobile tractor unit owned by the appellant and operated by an employee of the appellant, Paul Greer, north on Paca Street. The appellees sustained personal injuries and losses as a result of the accident.

The sole question raised on appeal is whether the driver of the tractor unit was acting within the scope of his employment at the time of the accident. This question is sought to be raised in several ways; by objection to the refusal of the trial court to grant two demurrer prayers, one of which specifically raised the question of agency; by objection to the court's oral charge to the jury, in which the question of agency was left to the jury for determination; and by objection to the action of the court in overruling a motion for judgment N.O.V.

The appellees contend that the appellant failed to except to the refusal of the court to grant the demurrer prayers, and that the motion for judgment N.O.V. is not appealable, in the absence of a proper exception prior to verdict, or reservation of decision by the trial court on the prayers or motion for directed verdict. There is force in these contentions, but in the case at bar, we think a proper exception was preserved to the court's oral charge.

In discussing the defense that Greer was not acting within the scope of his employment, the Court told the jury that the testimony was 'susceptible of different inferences and different interpretations and it is your job to consider all of that testimony, plus the fact that there is a presumption that the driver of a vehicle is the agent of the owner of the vehicle, and from that determine as best you can where the truth lies; and if Greer was or was not acting within the scope of his employer's business, at his employer's commission at the time.' At this point the Court invited suggestions from counsel, and counsel for the defendant stated: 'When your Honor said the testimony of Greer and Arnold and Hildebrandt was susceptible of different interpretations, I do not think that testimony is so susceptible.' The Court replied: 'I do. Please note that Mr. Barroll objects to that portion of the Court's charge to the jury and excepts to the Court's oral charge.' There can be no doubt that the Court's attention was specifically directed to the point raised by the demurrer prayers, and that the Court intended to grant an exception to this portion of his charge. It would have been better practice, no doubt, had the Court completed his charge and adjourned to chambers in order to permit counsel on both sides to state their objections and note exceptions out of the presence of the jury. Under the circumstances, we think counsel for the appellant did all that could reasonably be expected of him, in order to take and preserve a valid exception.

The evidence in the case at bar is uncontradicted. Paul Greer, a resident of Washington, D. C., was employed as a truck driver by the appellant on July 21, 1943. He reported for work at the main Washington office at 7 A. M. and was directed to drive a Mack tractor trailer (No. 17) to Baltimore to pick up a load of sugar and return. He drove to the American Sugar & Refinery. Co., Key Highway, Baltimore, and finished loading shortly after 5 P.M. Just before he finished loading, Melvin Arnold, a fellow-employee driving another tractor-trailer of the appellant (No. 18), came to the Refinery to obtain a half load of sugar, but the Refinery closed at 5, and Arnold asked Greer to meet him at pier 3 Light Street, and drove off. When he had finished loading, Greer kept the appointment. Both vehicles were parked, Arnold's tractor was detached from its trailer, and Greer accompanied Arnold who drove ten or eleven blocks to a restaurant on Frederick Street to get something to eat. Both testified that the purpose of detaching the trailer was to avoid pulling the load around, and that they had no specific instructions as to where they should eat on their trips to Baltimore.

The tractor was parked near the restaurant and they ate...