State of Maryland v. O'BRIEN

• Decision Date: 13 April 1956
• Docket Number: Civ. No. 7927.
• Citation: 140 F. Supp. 306
• Parties: STATE OF MARYLAND, for the Use of Valerie Yvonne WEAVER, individually, and as Mother and next friend of Margaret Yvonne Weaver, Vernon Proctor Weaver, Jr., and James Stephen Weaver, minors, and State of Maryland, for the Use of Patricia Jewell Weaver, infant, by Dorothy Jewell Wickham, her Mother and next friend, Intervenor, v. John LeRoy O'BRIEN and Thomas F. Chaney.
• Court: U.S. District Court — District of Maryland

140 F. Supp. 306

STATE OF MARYLAND, for the Use of Valerie Yvonne WEAVER, individually, and as Mother and next friend of Margaret Yvonne Weaver, Vernon Proctor Weaver, Jr., and James Stephen Weaver, minors, and State of Maryland, for the Use of Patricia Jewell Weaver, infant, by Dorothy Jewell Wickham, her Mother and next friend, Intervenor, v. John LeRoy O'BRIEN and Thomas F. Chaney.

Civ. No. 7927.

United States District Court D. Maryland, Civil Division.

April 13, 1956.

David I. Abse, Washington, D. C., and Jackson Brodsky, Bethesda, Md., for plaintiff.

Hal C. B. Clagett and Sasscer, Clagett & Powers, Upper Marlboro, Md., for intervenor.

Vance V. Vaughan, Brentwood, Md., and W. Hamilton Whiteford, Palmer R. Nickerson and Due, Nickerson, Whiteford & Taylor, Baltimore, Md., for defendant Chaney.

No counsel appeared for defendant O'Brien.

THOMSEN, Chief Judge.

On March 8, 1954, about 5:15 P.M., O'Brien, who had been drinking, drove Chaney's dump truck onto the wrong side of a busy highway, and ran head-on into Weaver's automobile, killing Weaver. In this action, brought on behalf of Weaver's wife and children, Chaney moved for a directed verdict on the ground that O'Brien had departed from the course of his employment by Chaney and was on a frolic of his own at the time of the accident. I reserved ruling on this motion, and submitted to the jury special interrogatories, including:

(1) Was O'Brien guilty of negligence which caused the death of Weaver?

(2) Was O'Brien acting as agent or employee of Chaney and in furtherance of Chaney's interests at the time of the accident?

(3) Was Chaney negligent in entrusting his truck to O'Brien on the day of the accident?

The jury answered all of these questions "Yes"; but Chaney has moved for judgment n. o. v. It is conceded that O'Brien was negligent but Chaney contends that there was no evidence legally sufficient to go to the jury on the other issues.

The jury might properly have found the following facts from the evidence. In the winter of 1953-54, Chaney, who lived in Capitol Heights, Prince George's County, Maryland, near the District of Columbia line, owned a 1951 Chevrolet 2-ton dump truck, and was under contract to haul bank run gravel for the District Sand and Gravel Company, which has a gravel pit on Branch Avenue, about 3 miles southeast of the District line. Chaney drove the truck himself only occasionally, since he had another job. In November, 1953, he employed O'Brien to drive the truck. Chaney agreed to pay O'Brien one-third of what the truck grossed, Chaney to pay all expenses, including gasoline and repairs. At the time he employed O'Brien, Chaney asked him whether he had a license; when O'Brien said he had, Chaney did not ask to see it, nor inquire whether it was an operator's license or a chauffeur's license. The difference will be discussed below. Nor did Chaney ask O'Brien whether he had had any previous accidents. At first Chaney allowed O'Brien to keep the truck overnight, as well as to use it to get breakfast and lunch, but shortly after Christmas Chaney learned that O'Brien had been driving the truck in the evenings and on week-ends after he had been drinking, and thereafter required O'Brien to deliver the truck to Chaney's home each day after the last delivery had been made, and to pick it up again the next morning.

The truck was used to deliver gravel in the City of Washington and its suburbs, wherever the dispatcher of the District Company directed, within a radius of about 12 miles from the pit. After the truck was loaded, the driver was given a receipt ticket, to be signed by the customer, which the driver was required to turn in to the dispatcher if he was on duty, and to the office if he was not. The dispatcher usually left about 5 P.M., but the office stayed open later, and deliveries were sometimes made as late as 7 P.M.

After O'Brien was employed, the truck grossed only about $75 per week; this worried Chaney, and he asked his brother-in-law, who also drove for the District Company, to check up on O'Brien. Early one afternoon, shortly before the first of March, 1954, Chaney was told that the truck was parked at Props, a tavern on the Marlboro Road, three or four miles north of the pit. Chaney found O'Brien asleep in the cab of the truck, and accused him of being drunk. O'Brien denied that he was drunk, but admitted that he had been drinking. The rear spring of the truck was broken.

On March 8, 1954, O'Brien obtained the truck at Chaney's home about 6:30 A.M. Instead of going direct to the pit, he went into Washington, where he had breakfast and looked at want ads, with the idea of locating another job. He then went to a tavern and had a bottle of beer. Around 11 A.M. he picked up a load of bank run gravel at the pit and delivered it in Southeast Washington, some six and a half miles from the pit, as directed by the dispatcher. O'Brien returned to the pit, but did not turn in the ticket. He loaded the truck with pea gravel, and drove to Forestville, several miles east of the pit, where he sold the gravel to the owner of the Highway Market. He used the proceeds to pay a debt he owed to the proprietor of the Props, had "two beers" at that tavern, met an Air Force sergeant, visited Mike Young's and the Senate Inn, two other taverns on the Marlboro Road (Alabama Avenue) north of the pit, and spent the afternoon drinking. About 5 P.M. O'Brien became convinced that he should return the receipt ticket for the Washington delivery to the dispatcher or the office at the pit, although it could have been turned in the next day. Accompanied by the Air Force sergeant, he drove west on Alabama Avenue to Branch Avenue, and turned south toward the pit, some four miles away. The only reason O'Brien had for driving the truck south on Branch Avenue was to return the ticket to the representative of the District Company at the pit. While driving towards the pit on Branch Avenue, O'Brien recklessly tried to pass an automobile and drove the truck across the center line of the highway head-on into Weaver's car, killing Weaver. Besides some unopened beer bottles, a partly empty bottle of gin was found in the truck after the accident.

A. Was there any evidence legally sufficient to prove that Chaney was negligent in entrusting his truck to O'Brien on the day of the accident? There are two elements in this problem: (1) O'Brien's lack of a chauffeur's license, and (2) the likelihood vel non that O'Brien would operate the truck under the influence of alcohol.

(1) Article 66½ of the Annotated Code of Maryland, 1951 ed., sec. 111 provides:

"(Permitting Unauthorized Person to Drive.) No person shall authorize or knowingly permit a motor vehicle owned by him or under his control to be driven upon any highway of this State by any person who is not authorized to operate such motor vehicle under this Article.

"Violation of this section shall be deemed to be a misdemeanor * * *."

The Maryland law provides for three types of licenses to drive: (a) operator's license; (b) chauffeur's license; and (c) special chauffeur's license to operate a motor vehicle while in use as a public or common carrier of persons. Secs. 85-91. Sec. 85 provides in part: "No person shall operate a motor vehicle as a chauffeur unless he holds a valid chauffeur's license." O'Brien came within the definition of "chauffeur". Sec. 2 (a) (4). The essential difference between a chauffeur's license and an operator's license is that a chauffeur's license must be renewed every two years. Sec. 91. The requirements for operators' licenses and chauffeurs' licenses are set out in Secs. 87 and 89. The application blank for each requires answers to a number of questions: whether the applicant's right to operate a motor vehicle has ever been revoked, suspended or refused in any State or the District of Columbia; whether the applicant has ever been convicted of any violation in the operation of a motor vehicle; whether applicant has ever been treated for certain diseases; whether applicant has ever had a mental or physical incapacity or infirmity, etc.

The fact that a chauffeur's license must be renewed every two years implies that the Department of Motor Vehicles will satisfy itself every two years that the applicant continues to be qualified to operate a motor vehicle as a chauffeur. It must be presumed that the Department makes the necessary investigation and examination of such applicants. O'Brien had a Maryland operator's license but did not have a Maryland chauffeur's license; Chaney therefore violated Sec. 111 in permitting him to operate the truck.

Under Maryland law the mere violation of a statute does not support an action for damages, but it is evidence of negligence, and where such violation is the proximate cause of an injury, a right of action accrues to the party injured. Hopper, McGaw & Co. v. Kelly, 145 Md. 161, 169, 125 A. 779; Kelly v. Huber Baking Co., 145 Md. 321, 334, 125 A. 782; Cumberland & Westernport Transit Co. v. Metz, 158 Md. 424, 438, 149 A. 4, 149 A. 565; Brown v. Bendix Radio Division, 187 Md. 613, 51 A.2d 292; Gosnell v. Baltimore & Ohio R. Co., 189 Md. 677, 687, 57 A.2d 322; State, for Use of Parr v. Board of County Commissioners, 207 Md. 91, 113 A.2d 397, 402. See also Gordon v. Bedard, 1929, 265 Mass. 408, 164 N.E. 374 and Kenyon v. Hathaway, 1931, 274 Mass. 47, 174 N.E. 463, 73 A.L.R. 156.

It is not necessary in this case to determine whether the mere fact that Chaney permitted O'Brien to drive without a chauffeur's license is sufficient to take the case to the jury against Chaney on this issue, since that fact must be considered in connection with the evidence of O'Brien's drinking.

(2) The Court of Appeals of Maryland has adopted and applied the rule formulated in the Restatement, Torts, Sec. 390, that "`one who supplies directly or through a third person a chattel for the use of another whom the supplier knows or from facts known to him, should know to...