Pollock v. Watts

Decision Date12 January 1923
Docket Number102.
Citation121 A. 238,142 Md. 403
PartiesPOLLOCK ET AL. v. WATTS.
CourtMaryland Court of Appeals

Appeal from Superior Court of Baltimore City; Robert F. Stanton Judge.

"To be officially reported."

Action by Edgar O. Watts against Samuel H. Pollock and Fannie L Pollock. From a judgment for plaintiff, defendants appeal. Affirmed as to Samuel H. Pollock, and reversed as to Fannie L. Pollock.

Argued before BOYD, C.J., and BRISCOE, THOMAS, URNER, ADKINS, and OFFUTT, JJ.

William L. Marbury and L. Wethered Barroll, both of Baltimore, for appellants.

Arthur L. Jackson, of Baltimore (Herbert L. Grymes, of Baltimore, on the brief), for appellee.

ADKINS J.

This is an appeal by Mr. and Mrs. Pollock, from a judgment against them in favor of appellee for an injury to appellee in a collision between the automobile of Mrs. Pollock, which was being driven by her husband, and the motorcycle of appellee.

The undisputed facts are as follows:

Mr Pollock left their home on the morning of the accident in the wife's car. His objective was a cemetery where his mother was buried. When they got near the corner of Calhoun and McHenry streets, Mrs. Pollock got out of the car to go to her sister's near by. Mr. Pollock had an appointment to meet his brother at his sister's store near the corner above mentioned, for the purpose of going with them to their mother's grave. On inquiring at the house, Mr. Pollock found that his brother was not there, and after Mrs. Pollock left the car he proceeded alone in the car towards his brother's home, having told his sister to be ready. Shortly after this the accident happened.

The disputed questions in the case are:

(a) Was it the purpose of Mrs. Pollock to go with the brother and sister to their mother's grave?

(b) If so, was this so far a matter of Mrs. Pollock's business or pleasure as to constitute Mr. Pollock her agent in the operation of the car at the time of the accident?

On the first point, the only testimony pointed out by appellee as tending to show that Mrs. Pollock was to be one of the party to visit the cemetery is the following:

Mr. Pollock, being on the stand, was asked:

Q. By what right were you operating that automobile on that day? A. By my own right. I simply took it. We were going to the cemetery that Sunday morning. I was going down to my sister's. I had an appointment with my brother there. He was not there, and in the meantime I asked my wife to go along and if she wanted to go along to the cemetery, and she said, no, she was going to her sister's.

There was a motion here to strike out conversation, which was granted. There was an exception to this ruling, but it was not made the subject of a bill of exception.

There is also the testimony of the witness William A. Helber as to a conversation he had with Mrs. Pollock after the accident. He said:

"Mrs. Trapolsky and Mrs. Pollock came down hunting for me and was excited and said: 'I could not see you. I had a little boy looking for you.' They came back and made another trip and located me, and after they located me she said: 'Don't go up and swear so hard; don't go to the station house.' I hadn't gone to the station house. All I did, I told the officer what I had seen. I didn't go to the station house. She told me he had just let her out at the corner and going to get a friend to go to the cemetery and come back there.
Q. Where was he going for the friend? A. Going to East Baltimore, I think, and coming back to go to the cemetery.
Q. Who is Mrs. Trapolsky? A. That lady who keeps the store across the street where she was left out.
Q. Is she any relation to Mr. Pollock? A. I believe she is Mr. Pollock's sister."

We do not find anything substantial in Helber's testimony above quoted tending to show that it was Mrs. Pollock's purpose to go to the cemetery. Much was said in the argument about the improbability of Pollock's coming back to Calhoun and McHenry streets, not in the direction of the cemetery from his brother's house, for any other purpose than to take in his wife again. But this argument overlooks the fact that Mrs. Trapolsky, Pollock's sister, lived there, and Pollock had told her to get ready, when he left to go after his brother.

But we have dwelt too much at length with this feature of the case for if it be admitted for the sake of the argument that Mrs. Pollock was to be one of the party, it by no means follows that any purpose of hers was served when her husband took the car without any direction from her and digressed from their course to go after his brother. That digression by the husband cannot be assumed to have been in her interest or for any purpose of hers. She had then at any rate left the car, and he was proceeding on another errand, temporarily, than that of taking his wife to the cemetery. It certainly cannot be assumed that the going after his brother to visit the grave of their own mother was in any...

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3 cases
  • Schloss v. Silverman
    • United States
    • Maryland Court of Appeals
    • May 31, 1937
    ...5, § 26; Myers v. Shipley, 140 Md. 380, 382, 116 A. 645, 20 A.L.R. 1460; McNamara v. Pabst, 137 Md. 468, 475, 112 A. 812; Pollock v. Watts, 142 Md. 403, 407, 121 A. 238; Canton Co. v. Seal, 144 Md. 174, 183, 125 A. Kvedera v. Mondravisky, 149 Md. 374, 131 A. 766; Cumberland Transit Co. v. M......
  • Jeffrey v. Osage Mfg. Co.
    • United States
    • North Carolina Supreme Court
    • November 20, 1929
    ...at the time of the accident." Washburn v. Owens Co., 252 Mass. 47, 147 N.E. 564. The Supreme Court of Maryland, in the case of Pollock v. Watts, 142 Md. 403, 121 N.E. 238, that the presumption that the driver is agent of the owner is rebuttable, and, if rebutted by uncontradicted testimony,......
  • Forbstein v. General Tire Co.
    • United States
    • Maryland Court of Appeals
    • November 23, 1934
    ... ... direct the verdict for the defendant Mrs. Lilly. Charles ... v. Baltimore, 138 Md. 523, 527, 114 A. 565; Pollock ... v. Watts, 142 Md. 403, 406, 121 A. 238; Salowitch v ... Kres, 147 Md. 23, 30, 127 A. 643; Schneider v ... Schneider, 160 Md. 18, 21, 152 A ... ...

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