Scott v. James Gibbons Co.
| Decision Date | 11 February 1949 |
| Docket Number | 82. |
| Citation | 64 A.2d 117,192 Md. 319 |
| Parties | SCOTT et al. v. JAMES GIBBONS CO. |
| Court | Maryland Court of Appeals |
Appeals from Baltimore City Court; Michael J. Manley, Judge.
Consolidated actions by Christine Scott, administratrix of the estate of Frank M. Scott, deceased, and by State of Maryland, for the use of Christine Scott, surviving widow of Frank M. Scott deceased, against the James Gibbons Company, to recover damages for wrongful death. From judgments based on a directed verdict for defendant in each case, the plaintiffs appeal.
Reversed and remanded.
Paul Berman and Sigmund Levin, both of Baltimore (William Carswell Baxter and Theodore B. Berman, both of Baltimore, on the brief), for appellants.
James J. Lindsay, Jr. and Philip S. Ball, both of Baltimore (G Dudley Iverson, of Baltimore, on the brief), for appellee.
Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.
The accident out of which these cases arose occurred on a bridge which spans the Patapsco River on the Washington Boulevard which runs from Baltimore, Md. to Washington, D. C. and is known as U.S. Route 1. Frank M. Scott was killed in that accident and his widow, Christine Scott, brought two suits for damages against the James Gibbons Company, a body corporate, one under Lord Campbell's Act and one as administratrix of the estate of Frank M. Scott, deceased. The cases were consolidated and tried together. The trial court directed a verdict for the defendant in each case, upon which judgments were entered and from which plaintiff appeals.
The defendant is engaged in building and repairing roads, and owns a large amount of machinery, which is stored in a yard near Relay, Baltimore County. This yard is reached by a narrow road running westerly from Route 1 for a distance of about a quarter of a mile, and it is about three-quarters of a mile from Elkridge. Machinery is dispatched from this yard, by the superintendent of the yard, to operations in which the company is engaged.
This accident happened on June 15, 1946, at about 11:30 p. m. The road was dry, the weather clear, and no one saw the accident. At that time the defendant was engaged in repairing a road that runs from Fredericksburg, Virginia, southerly through several counties of that state. This work was being done for the Virginia State Highways Department. Carlton J. Layne was employed by the defendant to superintend this project. He stayed at a boarding house in Warsaw, Virginia, and as he had no office the company communicated with him at his boarding house, by telephone. He was directed by Mr. Charles D. Jones, the vice president and general manager of the defendant, to bring a piece of machinery which was then at Warsaw to the company's yard near Relay, Maryland. This trip was to be made on Saturday afternoon, and the tractor-trailer used in hauling the machinery, after the mission was accomplished, was to be immediately returned to Warsaw to be used on the Virginia project Monday morning. The distance from Warsaw to the company's yard is about one hundred and twenty-five miles, making the round trip two hundred and fifty miles. Layne left Warsaw in company with a man named Charles Martin. Martin drove the tractor. He was hired by Layne to work on the Virginia road. They left Warsaw around noon on June 15, 1946. Layne's purpose was to deliver the machinery and immediately return to Warsaw.
The evidence in the case shows that on the way to the defendant's yard the tractor became impaired and they did not arrive at the yard until after 10 o'clock that night. The condition of the tractor was such that it could not be used with safety to make the return trip to Warsaw without repair.
Randolph Walrath was employed by the defendant. His duties were to see that the equipment was kept in repair and assigned to jobs. Layne called Walrath and told him that the lights were short-circuited and the generator on the tractor was not working and asked him to fix it. Walrath told him that he would do it the next day, Sunday. Layne said: 'Where am I going to stay?' and Walrath suggested that he go to a boarding house in Elkridge. Layne asked permission to use a tractor to drive to Elkridge. Walrath told him he could not do this as it was against the company's rulings, and suggested that he ask Frank Breedon, who lived nearby, to take him to Elkridge. This testimony as to what Walrath said was admitted in evidence over objection.
Layne took a tractor known as No. 55, and with Martin driving started for Elkridge. On the way to Elkridge the accident that caused his death, and the death of Scott, happened.
The trial court was of the opinion that there was no evidence legally sufficient to show that at the time and place of the happening of the accident involved here Layne was the agent of the defendant, and hence directed a verdict for the defendant in each of these cases.
The appellee contends that Layne was without authority, express or implied, to use tractor No. 55 to go from the yard to Elkridge for the purpose of obtaining lodging for the night, that his duty to the defendant for the day was finished when he arrived at the yard, and hence he was not engaged in the defendant's business when he left the yard in tractor No. 55 to go to Elkridge. The evidence shows that Layne was a paid a monthly salary and was on call at any time by the company in matters pertaining to the project in Virginia. He was directed to return a piece of machinery to the company's yard. He was not expected to drive. He had authority to direct any one in his employ on the Virginia job to drive, and he selected Martin.
It is the established law of this state that there is a presumption that the driver of an automobile is the agent and servant of the owner. This presumption is rebuttable, but the evidence necessary to destroy the presumption as a matter of law must be uncontradicted and conclusive, and if the evidence in the case, as to agency, is contradicted, or if uncontradicted is not conclusive, it becomes a question of fact and must be submitted to the jury. National Trucking & Storage, Inc. v. Durkin, 183 Md. 584, at page 588, 39 A.2d 687; Taylor v. Freeman, 186 Md. 474, at page 477, 47 A.2d 500.
As to agency, the question is: was the use of tractor No. 55 by Layne and Martin in going from defendant's yard to Elkridge for the purpose of finding a place to sleep within the scope of the business of the defendant upon which they were then engaged, or incident thereto? If it was, then the question becomes immaterial and the lower court was in error in taking these cases from the jury on the ground of non-agency.
Layne was directed to deliver a piece of machinery to defendant's yard. He was given no specific instructions in the matter. His authority to use all reasonable means to accomplish his master's purpose was unquestioned. There is no doubt that if the tractor he used to bring the machinery to the yard had not become impaired and he had used it in going to Elkridge to a hotel to sleep, he would have had perfect authority to do so. These men had driven one hundred and twenty-five miles in a tractor, hauling a loaded trailer, that became disabled along the way, and were tired and sleepy as it was then about 10:30 p. m. Mr. Jones, the vice president and general manager of defendant, directed Layne to return to the yard a piece of machinery then at Warsaw, Virginia. This had been accomplished, but the return trip to Warsaw had to be made. Jones expected the trip to the yard and back again to Warsaw to be made in one day. Jones testified if both of these men were sleepy he would not have expected them to return that night, and the defendant would have paid the expenses for lodging of Martin, but not Layne, as he had an expense account.
This court has frequently held that the master is liable for the tortious act of his agent resulting in injury and damage to a third party, if at the time and place the tortious act was committed the agent was within the scope of the master's business. Great Atlantic & Pacific Tea Co. v. Noppenberger, 171 Md. 378, 189 A. 434; Regal Laundry Co. v. A. S. Abell Co., 163 Md. 525, 163 A. 845; Heaps v. Cobb, 185 Md. 372, 45 A.2d 73; East Coast Freight Lines v. Mayor & City Council, etc., Md., 58 A.2d 290, 2 A.L.R.2d 386.
We could cite a number of our decisions on this point, some of which are referred to and quoted in the above cited cases.
In Adams v. South Carolina Power Co., 200 S.C. 438, 21 S.E.2d 17, 20, Blease, an engineer in the employ of the company, was required to make investigatory trips in an automobile furnished by his employer. When away he stopped at various convenient places to sleep. At the time of the collision, at 1 a. m., Blease was driving towards the town of Walterboro, solely for the purpose of sleeping there, his duties on the following day requiring his presence in a nearby town called Ruffin. It was held: 'At the time of the automobile collision, it may reasonably be inferred from his testimony that he was traveling to Walterboro on the business of his employer.'
In Brown v. Montgomery Ward & Co., 104 Cal.App. 679, 286 P. 474, 475, Vinje was a traveling auditor for the company. He was supposed to report at the main office at Oakland. He passed that store, as it was closed, and continued on his way to his home, when the accident happened. The court said:
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