Sacker v. Waddell

• Decision Date: 03 December 1903
• Parties: SACKER v. WADDELL.
• Court: Maryland Court of Appeals

56 A. 399

98 Md. 43

SACKER

v. WADDELL.

Court of Appeals of Maryland.

Dec. 3, 1903.

Appeal from Circuit Court, Dorchester County; Henry Lloyd, Judge.

Action by William Sacker against Columbus Waddell. From a judgment for defendant, plaintiff appeals. Reversed.

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ.

Harrington & Mace, Clement Sulivane, and W. Laird Henry, for appellant.

James W. Waddell and John R. Pattison, for appellee.

BOYD, J. The appellant sued the appellee for the loss of services of his son, who was about 10 years of age, and for money expended by him for injuries sustained by the son by reason of the alleged negligence of the infant son of the appellee, "employed and engaged in driving a wagon upon said defendant's business." Samuel Johnson assisted Waddell, the appellee, in threshing his wheat, by furnishing him two men, a wagon, and two horses; and he notified him when he would thresh his own wheat, and requested a return of help. Waddell said that he could only send him a single team, and "Fred might go, and Johnson replied that it was all right." At the appointed time the appellee sent his son Frederick, who was about 15 years of age, with his horse and wagon, to Johnson's. Frederick drove to the wheat field, and, before reaching the thresher, stopped in the field and got a load of wheat, which he carried from where it was stacked to the thresher, "without any instructions from Johnson or any one else." The length of the thresher, attachment, and engine was about 60 feet. A man named Gambrill was in charge of the work for Johnson, and Claude Sacker, the appellant's son, who was visiting Joseph Johnson, a brother of Samuel, went of his own accord with Joseph and others who were to help Samuel. After Frederick had taken one or two loads to the thresher, he hauled another, which he had unloaded, and, as he was about to return to the stacks, Gambrill called him to come to him; and, looking towards Gambrill, who was standing in the field, some distance from the thresher, he drove past the thresher, attachment, and engine, and, in doing so, ran over Claude Sacker, who was standing by a pile of wood near the engine. Frederick did not see Claude until his horse was within a few feet of him, when he called to him to "look out," and tried to check the horse; but Claude, in the confusion, took a step backwards, and the wagon ran over him. There was some conflict between the witnesses as to the speed of the horse, but that is not very material, as the case is presented to us. At the conclusion of the testimony the court granted a prayer that there was no legally sufficient evidence to entitle the plaintiff to recover, and instructed the jury to find for the defendant. It is said that action of the court was based on the theory that at the time of the accident the relation of master and servant did not exist between the appellee and his son, but the latter was then the servant of Samuel Johnson, and under his control and direction. It is suggested in the brief for the appellee that, independent of that question, the prayer was properly granted, as there was no legally sufficient evidence upon which the jury could have found for the plaintiff; but, without repeating the testimony, we are of the opinion that there was sufficient evidence of negligence to require the court to submit it to the jury, if the appellee was responsible for the negligence of Frederick at the time of the injury, and hence we must consider that question.

The precise point now presented has not heretofore been decided by this court, although there have been many cases before us and our predecessors involving the responsibility of masters to third persons by reason of the alleged negligence of their servants. In Deford v. State, use of Keyser, 30 Md. 179, the principle recognizing the distinction between cases in which the relation of master and servant existed and those in which there were independent contractors was fully adopted, and has since been followed. But the question here is whether the facts proven so establish the relation of master and servant between the appellee and his son in reference to the work at which the latter was engaged as to make the former responsible for the alleged negligence of the latter, which resulted in the injury of young Sacker. The case of Laugher v. Pointer, 5 B. & C. 547, left the law in doubt in England (the four judges being equally divided) as to whether the owner of a carriage drawn by horses owned by a jobman. who also supplied the coachman, was responsible for an injury sustained in a collision. The jobman did not pay the coachman for that day, and the defendant did, but it was paid as a gratuity, and not in pursuance of any contract; the coachman having no employment by the defendant, excepting such as might be inferred from his driving the carriage on that day. In Quarman v. Burnett, 6 Mee. & Wels. 499, which, as was stated in Deford's Case, "is regarded as a leading case, and the one in which the present approved doctrine was first definitely established," the opinions of Abbott, C. J., and Littledale, J., in Laugher v. Pointer were approved, and the defendant was held not to be liable, although there were some facts which strengthened the case against the...