Salowitch v. Kres

• Decision Date: 15 January 1925
• Docket Number: 19.
• Citation: 127 A. 643,147 Md. 23
• Parties: SALOWITCH v. KRES ET AL.
• Court: Maryland Court of Appeals

127 A. 643

147 Md. 23

SALOWITCH v. KRES ET AL.

No. 19.

Court of Appeals of Maryland

January 15, 1925

Appeal from Superior Court of Baltimore City; George A. Solter Judge.

"To be officially reported."

Action by Isador Kres and others, copartners trading as the West Baltimore Wall Paper Company, against Louis Salowitch trading as the Salowitch Auto-Part Company. Judgment for plaintiffs, and defendant appeals. Reversed without awarding new trial.

Argued before PATTISON, ADKINS, OFFUTT, DIGGES, and PARKE, JJ.

H Mortimer Kremer, of Baltimore (Albert J. Fleischmann, of Baltimore, on the brief), for appellant.

Wm. L Marbury and L. Wethered Barroll, both of Baltimore, for appellees.

DIGGES J.

The judgment in this case was entered upon the verdict of a jury in the superior court of Baltimore city in favor of the appellee for $168, being the amount paid by the appellee for repairing damage to its truck occasioned by a collision between it and the truck of the appellant. From that judgment the appellant has taken this appeal. The single exception contained in the record is to the action of the court below in refusing certain prayers of the appellant. At the close of the testimony in the case, the appellee, plaintiff below, did not offer any prayers, and the appellant offered nine prayers designated as defendant's A, B, C, D, E, F, G, H, and I prayers. The court rejected defendant's A, B, C, D, H, and I prayers, and this action of the court constitutes the single bill of exception in the case. At the argument in this court, and in the brief of the appellant, the exception to the action of the court in rejecting defendant's C, D, H, and I prayers was abandoned, and the appellant only asks that we review the action of the court in rejecting its A and B prayers. These were the usual demurrer to the evidence prayers, and ask for an instructed verdict for the defendant; so that our province in this case is confined to deciding the correctness of the action of the court below in refusing these prayers. The appellant admits the ownership of the truck which caused the damage, the general employment of the driver of that truck, and his negligence as being the cause of the collision. He, however, contends that he is not liable for the reason that the uncontradicted evidence in this case shows that Murphy, the driver of the truck, was not acting within the scope of his employment at the time of the accident, or that at said time he was the servant of some other person and not the servant of the appellant. In order to determine the soundness of this contention we are required to examine all of the evidence in the case.

Upon a careful examination of the record we find these facts undisputed: That the appellant, Louis Salowitch, trading as the Salowitch Auto-Part Company, was engaged in the business of dealing in auto parts and used serviceable trucks, his place of business being Clifton avenue and Monroe street in the city of Baltimore. That he had been so engaged for five years prior to the accident. That he was the owner of the truck causing the damage complained of, and that the truck at the time of the accident was being driven by Murphy, who was in the general employ of the appellant. There is conflict in the testimony as to how long Murphy had been employed by the appellant; the appellant himself testifying that he had engaged him about four days before the accident, and Murphy testifying that he had been employed about a month and a half. This, however, is immaterial for the purposes of this decision. That on the day of the accident the appellant was not at his place of business, but had gone to Washington, going direct from his residence and not having been at his place of business at all that day. That the accident occurred at the corner of Lafayette and Pennsylvania avenues, about 9:30 or 10 o'clock a. m. That at the time of the accident Morris Salowitch, brother of Louis Salowitch, was in the truck, sitting alongside of Murphy the driver. That Morris Salowitch lived with his and the appellant's father, who conducted a grocery business at 250 South Eden street and also lived at that place. That the duties of Murphy were tearing down machines and working in the automobile shop of the appellant. That he had no operator's license to drive a car. That after the accident Murphy drove the truck to the home of the appellant's father, the appellant's brother accompanying him, and left it at that place, going immediately thereafter out of the state and not returning until apprehended and taken into the traffic court. These facts are established by the testimony offered on behalf of the plaintiff and the defendant, and are uncontradicted.

The evidence as to what occurred at the place of business of the appellant on the morning of and before the accident, as related by Murphy, who testified for the plaintiff, and the evidence of the appellant and his brother Morris, is in direct conflict one with the other, and it is impossible to reconcile the two versions.

The testimony of Murphy is: That on the morning of the accident, a little while after he went to work, "Mr. Salowitch's brother came up and wanted a truck. Mr. Salowitch was not there so his brother went to the telephone to call him up. Then he called me to the telephone, and I spoke to Mr. Louis Salowitch, and Mr. Salowitch told me to take the truck and drive it for his brother. I took the truck and drove it, and we were hauling some groceries, and on our way back to Mr. Salowitch's place I had a collision at Pennsylvania and Lafayette avenues." This was in Murphy's examination in chief, and on cross-examination he said:

"I was not employed to drive automobiles; it was about half past 9 or 10 o'clock that morning when Mr. Salowitch's brother came to the place, and, after a conversation with me, he went to the telephone to speak to Mr. Salowitch, my employer. I recognized his voice and, while I can't remember exactly what the conversation was, he told me to take the truck out and drive for his brother and I did it. * * * Mr. Salowitch told me to go with his brother and haul groceries for his father. Yes, I admit that immediately after this accident I ran away and went out of town; I went to Altoona, Pa., the same day."

The above-quoted testimony of Murphy was all of the testimony offered on behalf of the plaintiff bearing upon the question of whether or not Murphy was the servant of the appellant at the time of the accident, and was at that time acting within the scope of his employment.

The testimony of the appellant in his own defense was that he had employed Murphy about four days before the accident, and he was employed to tear down machines and work in the shop, and he had nothing to do with the driving or operation of machines; that Murphy never had any authority from him to operate this machine; that the morning of the accident he (the witness) went to Washington, leaving Baltimore about 8 o'clock; that he did not go to his place of business at all on that day, but next morning went to the shop, and his attention was called to damage to his truck by his foreman saying, "Look what Murphy done," and showing him a little two-ton Packard with the bumper smashed and the radiator leaking. He further testified that he did not have such a conversation on the telephone as Murphy testified to here, and did not remember calling Murphy or anybody else that morning; that Murphy said it was between 9:30 and 10 o'clock, and that he (the witness) was in Washington at 10 o'clock. The witness further testified that Murphy had no authority to drive any machine belonging to the witness, and that Murphy had testified at the traffic court that he (Murphy) "did not have my permission to drive that car that morning."

The witness Morris Salowitch, brother of the appellant, testified as follows:

"This is the way I came to be on the truck. On Sunday afternoon my brother, Louis, was visiting my mother with his wife, and he told me he was to go to Washington Monday morning. I came up to his yard to see him before he left, but, he was gone already. I came up about half past 7 or 8 o'clock; I must have got there quarter after 8. I told John, the colored man, that Louis wasn't there; I was going down town. I hung around a while and I was watching them tear down cars--I liked to see how they did it. I told him I was going down town about half past 9 or 10 o'clock and the driver there, Murphy, he told me he could take me down; he said he was going that way and I went with him. No; I had not seen my brother that morning. I was down at the place for about an hour, something like that. John was boss there and giving orders, telling Murphy to tear down certain parts of the truck, tearing certain parts away and put iron on a certain pile. I had seen Murphy around there once before. He was with one of the drivers from a big truck that came in to be repaired. I told Murphy I was going down town and, of course, Louis didn't come back. He said, 'I can take you down,' and I went with him. He went from Clifton to Fulton, up Fulton to North, North to Pennsylvania, and he turned down and he went down to near Lafayette, and I seen the big Republic truck. I recognized it with a lot of packages and right smart speed--I don't know how fast--and Murphy turned in short, and he hit him in the back. * * * We didn't have any groceries on the truck, and we didn't have any on the truck before this accident. I was only on the truck about five minutes, just as long as it takes to run down to that street there. We hadn't gone anywhere else between my brother's place and the scene of the accident. Murphy was taking me home. I asked him, 'Where are you going?' He said that is all right, he was going down that way. I had not

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