Wilson v. Dailey

• Decision Date: 11 November 1948
• Docket Number: 18.
• Citation: 62 A.2d 284,191 Md. 472
• Parties: WILSON v. DAILEY.
• Court: Maryland Court of Appeals

62 A.2d 284

191 Md. 472

WILSON v. DAILEY.

No. 18.

Court of Appeals of Maryland

November 11, 1948

Appeal from Circuit Court, Washington County; Joseph D. Mish, Judge.

Action by William L. Wilson, Jr., ancillary administrator of the estate of Robert E. Dorsey, against Thomas Dailey, trading as Dailey Trucking Company, for wrongful death of plaintiff's intestate in an automobile accident, brought under the West Virginia Lord Campbell's Act. From the judgment, plaintiff appeals.

Judgment affirmed.

Edward J. Ryan and William L. Wilson, Jr., both of Cumberland, and Wagaman & Wagaman, of Hagerstown, for appellant.

W Earle Cobey, of Cumberland (H. P. Whitworth, Sr. and H. P Whitworth, Jr., both of Westernport, and Lane, Bushong & Byron, of Hagerstown, and C. William Gilchrist, of Cumberland, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

MARKELL Judge.

This is an appeal from a judgment for defendant on a directed verdict in a suit under the West Virginia Lord Campbell's Act. West Virginia Code (1943), Sections 5474, 5475.

On September 26, 1945 defendant, who for eighteen years has conducted a trucking business at Westernport employed one Broadwater, who had previously driven for him for eight years until March, 1944, to drive one of his trucks from Westernport to Hancock to get a load of tomatoes. Broadwater was to go by way of Cumberland and Berkeley Springs.

Deceased lived at Keyser, West Virginia, and left his home there between 3:15 and 3:30 P.M. on September 26, 1945. The uncontradicted testimony of defendant, called by plaintiff, is that: he gave Broadwater instructions not to carry and riders, and to take his time and come back on time, gave him his expense money, and did not authorize him to employ anybody to assist him in any way; in the garage where Broadwater got the truck, and also in the office, where they had their conversation between 11:15 and 11:30 A.M., there were and had been for eight or ten years, when Broadwater worked for him before, notices to drivers, conspicuously posted, that 'any driver carrying riders other than helpers will be immediately dismissed from duty.'

The same day, between 5:30 and 6 P.M., in West Virginia, about 21 miles west of Berkeley Springs, the truck, while going east, overturned, once or more, and deceased was crushed under the truck and killed. Broadwater also was injured and some days later died as the result of his injuries.

There was testimony, offered or proffered, that: a mile or a mile and a half before the accident the truck was going 45 or 50 miles an hour; the road marks indicated that it went off the macadam on the berm or edge of the shoulder for 150 or 200 or 300 feet, then came back, 'took to the left side', turned over (once or two or three times) and skidded and came to a stop upside down.

Testimony was proferred, but excluded as inadmissible, that: on the afternoon of the accident, between two o'clock and half past, Broadwater, in Keyser, asked decedent's nephew to go along with him and help him get this load of tomatoes, the nephew said he could not go, and then and there Broadwater asked decedent to go along with him to help him get this load of tomatoes. We agree with the lower court that this testimony was inadmissible and was not a declaration by Broadwater in the regular course of business. On the contrary, the subject matter of the alleged declaration apparently was outside the scope, and contrary to the terms, of Broadwater's employment.

There is, therefore, no evidence that at the time of the accident decedent had any right to be on defendant's truck. Cf. East Coast Freight Lines v. Baltimore, Md., 58 A.2d 290.

As the accident and death occurred in West Virginia, defendant's liability, if any, is based upon the laws of West Virginia. Western Union Telegraph Co. v. Brown, 234 U.S 542, 34 S.Ct. 955, 58 L.Ed 1457. Plaintiff set out in the declaration and also offered in evidence the West Virginia Lord Campbell's Act, supra, but did not give defendant other notice of intention to offer evidence, or ask judicial notice, of West Virginia law. Uniform...