A.S. Abell Co. v. I. Sopher

Forsythe, J., delivered the opinion of the Court. The appellant, the A. S. Abell Company, appeals from a judgment recovered against it in the Baltimore City Court, in favor of the appellee, I. Sopher, trading as Richman Brothers. The suit arose out of a collision, on July 18th, 1940, between trucks belonging to the appellant and the ap‘pellee. The appellant’s truck was in charge of, and being operated by one of its employees, Walter M. Barnsley.

At the trial of the case, and after all of the evidence had been offered, the appellant offered two prayers, A and C, asking for an instructed verdict in favor of the appellant. The Court refused both prayers, which resulted in exceptions, and this appeal. The prayers were based on the uncontradicted, and undisputed evidence of the driver of appellant’s truck, Barnsley, which the appellant contends, shows that at the time of the collision of the trucks the driver of the appellant’s truck was not engaged in the' appellant’s business, but was on a mission of his own, entirely outside of his employment. ⁶⁸⁹ The testimony of Barnsley is, that on the morning of the accident, he had left the A. S. Abell building at Baltimore and Charles Streets, with the truck in which there were packages of proof to be delivered by him to business houses in various parts of the city. His first stop in delivering the packages of proof was at Howard and Lexington Streets, where he delivered proof to three department stores.

From there he proceeded, in a general northerly direction, to Eutaw Street and Madison Avenue and left a package of proof. Then Barnsley continued on his route, almost due westerly, to the 2100 block of West Lafayette Avenue, and made another delivery of proofs. From that point, Barnsley testified, he drove the truck directly to Gwynn Oak Junction, a distance of about two and a half miles, to pick up a package and take it to the home of his mother at 3806 Forest Park Avenue; that after getting his package at Gwynn Oak Junction, and while on his way to his mother’s home, the accident happened. The scene of the accident was at the intersection of Main and Grenada Avenues, several blocks from his mother’s home, and between it and Gwynn Oak Junction.

Barnsley further testified he had no proofs to deliver in the neighborhood of Gwynn Oak Junction, .or the home of his mother on Forest Park Avenue, or anywhere near the scene of the accident. Barnsley also testified that when he went to Gwynn Oak Junction he had other packages of proof in the truck, which were to be delivered on Druid Hill Avenue, North Avenue Market, at North and Maryland Avenues, and to a place of business in the 1700 block of North Charles Street. It was his intention, he said, to leave those packages on his way to the appellant’s offices, after he had finished his personal mission at Gwynn Oak Junction. No evidence was offered to contradict Barnsley, but evidence was offered that at the time he was employed by the appellant to drive one of its trucks, he had been ⁶⁹⁰ given express instructions to the effect that he was permitted to use the truck only for the appellant’s business, and he signed a card which stated that if he violated those instructions he would lose his job.

The question of whether the evidence is legally sufficient to justify submitting a case to a jury has been considered by this Court in a great numbey of cases, and it has uniformly been held that “each case depends largely upon its own facts and the construction to be adopted with reference to them.” McDowell, etc., v. Magazine Service, 164 Md. 170, 173 , 164 A. 148, 149 . The law is well settled in this State, as elsewhere, that when the undisputed, and uncontradicted evidence clearly discloses that a servant has committed an act of negligence, at a time when he was not acting within the scope of his employment, the question of the employer’s liability should not be allowed to go to the jury, but becomes properly a question for the Court. McDowell, etc., v. Magazine Service, supra; Wells v. Hecht Bros. & Co., 155 Md. 618 , 142 A. 258 ; International Co. v. Clark, 147 Md. 34 , 127 A. 647 ; 22 C. J. 124. In Phipps v. Milligan, 174 Md. 438 , 199 A. 498 , this Court said: “Where the evidence to rebut the presumption that the driver of the automobile is the owner’s agent is uncontradicted and conclusive, the Court may declare the non-liability of the owner as a matter of law.” Wagner v. Page,