Regal Laundry Co., Inc. v. A.S. Abell Co.

• Decision Date: 10 January 1933
• Docket Number: 34.
• Citation: 163 A. 845,163 Md. 525
• Parties: REGAL LAUNDRY CO., INC., v. A. S. ABELL CO.
• Court: Maryland Court of Appeals

163 A. 845

163 Md. 525

REGAL LAUNDRY CO., INC., v. A. S. ABELL CO.

No. 34.

Court of Appeals of Maryland

January 10, 1933

Appeal from Superior Court of Baltimore City; Walter I. Dawkins Judge.

Action by the Regal Laundry Company, Inc., against the A. S. Abell Company, a body corporate, and another. From a judgment for named defendant, plaintiff appeals.

Reversed and new trial awarded.

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

Hiram C. Griffin, of Baltimore, for appellant.

Foster H. Fanseen, of Baltimore (Charles F. Goldberg, of Baltimore on the brief), for appellee.

DIGGES J.

The accident out of which this case arose occurred on October 29, 1930, between 9 and 9:30 a. m., at or near Jones Station, in Anne Arundel county, Md. An automobile owned and operated by Louis J. O'Donnell, traveling in a northerly direction from Annapolis toward Baltimore, collided with the plaintiff's automobile truck, which was being driven in a southerly direction by an employee of the plaintiff. As a result of the collision the plaintiff's truck was badly damaged. The plaintiff instituted suit in the superior court of Baltimore city against Louis J. O'Donnell and the A. S. Abell Company, a body corporate, the owner and publisher of the Baltimore Sun. The case proceeded against the defendant O'Donnell, with the result of a judgment being entered against that defendant. The appeal is by the plaintiff from a judgment for costs in favor of the appellee.

The single exception contained in the record is to the ruling of the court on the prayers, which are as follows:

(a) "The Court instructs the jury that the plaintiff has produced no evidence legally sufficient to entitle a recovery as against the defendant A. S. Abell Company, and the verdict of the jury must be in favor of the defendant A. S. Abell Company."

(b) "The defendant, the A. S. Abell Company, prays the Court to instruct the jury that the uncontradicted evidence is that the defendant O'Donnell at the time of the accident was not the servant and agent of the defendant, the A. S. Abell Company, and the verdict therefore should be for the defendant, the A. S. Abell Company."

The effect of the court's ruling in granting these prayers was to hold that there was no evidence legally sufficient to entitle a recovery by the plaintiff, but, on the contrary, the uncontradicted evidence established that the defendant O'Donnell at the time of the accident was not the servant and agent of the defendant A. S. Abell Company.

The facts as contained in the record are simple and undisputed. They may be stated with substantial accuracy as follows Louis J. O'Donnell, during the month of October 1930, and up to the time of the trial, was employed by the A. S. Abell Company as a reporter. His duties during the month of October, 1930, were varied, and consisted of reporting the meetings and speeches held and made by the Democratic and Republican candidates for Governor of the state, he being assigned sometimes with one and then with the other candidate. On October 28, 1930, he was assigned by the appellee to cover a meeting held by the Republican candidates at Crisfield, Somerset county, and report the speeches of the statewide candidates made at that place. He went to Crisfield, attended the meeting, reported the speeches of those candidates, and sent the information in to the Sun; and they published an article concerning that meeting. He left Crisfield about 11 o'clock on the night of the 28th and proceeded to Salisbury, where he spent the night, that place being on the only route which he knew and which he took in returning to Baltimore. He left Salisbury about 5 o'clock the next morning and proceeded to Baltimore by way of the Claiborne-Annapolis Ferry, crossing that ferry in company with the Republican candidates who had addressed the meeting at Crisfield. He was driving his own automobile. Upon reaching Annapolis he proceeded on his way to Baltimore to report to his employer and obtain directions for his future movements on that day. The accident happened between Annapolis and Baltimore; after which he went to Glenburnie, reported the accident, and asked for instructions, and was told by his employer to continue with the Republican candidates and cover their meetings in Frederick county, which were to be held in the afternoon of that day. This O'Donnell did, by accepting an invitation to go to Frederick in the car of one of the candidates, arriving about 1 o'clock in the afternoon. He knew they were going to Frederick county, but did not know where. The candidates had a schedule made for a week's program, and the Sun office knew the program. He could not say definitely whether he knew on October 28th that they were to be in Frederick the next day. On the 27th he had written an article which stated: "Tomorrow candidates will tour Somerset County and address a meeting at Crisfield"; the article then stated "they were scheduled in Frederick Wednesday 11:00 a. m.," but he could not state whether the last sentence was added at the office in Baltimore. In reply to a question as to when he first knew he was going to Frederick, he said: "I more or less suspected I would go all along, but I first knew definitely when I reached Glenburnie after the accident"; that he had been with these particular candidates two or three days before October 29th; that no definite arrangements were made between him and his employer for transportation while he was on this particular trip covering the campaign; that his employer gave him an advance of money, he signed a slip and they gave him maybe $50 or $75, maybe $100 "if they think he will have enough expenses"; that he traveled at their expense and at the end he accounted for it; that is the arrangement he had. "Q. Was there anything allowed you for the use of your automobile? A. Not definitely. If you did use your own car you were given transportation allowance of seven cents per mile." He further testified that that arrangement applied on this particular trip; that he used his own car and the A. S. Abell Company allowed and paid him 7 cents a mile for this trip; that his employer published articles on October 28, 29, and 30, 1930, written by him and signed either "L.J. O'D." or "Louis J. O'Donnell, staff correspondent of the Sun"; that these articles dealt with the meetings and speeches of the Republican candidates, including the meeting on October 27th, the meeting at Crisfield on the 28th, and the meetings in Frederick county on the 29th; that he does not recall any other way he could have come from Crisfield to Baltimore, does not know whether it is the customary way, but it was desirable for his purpose in order to stop in Salisbury; that he called the home office of the appellee from Glenburnie in order to notify them of the accident; that he talked with the assistant city editor and was asked by that individual: "What are you going to do?" "I said I was coming to Baltimore. He said, you probably will go with the Republican candidates. I said, I can go along with them right now; I am sure the Mayor" (one of the candidates) "will take me up with them. He said, yes,...