Bell v. State

Pattison, J., delivered the opinion of the Court. This is an appeal by Dr. Arthur I. Bell from a judgment recovered by Vincent Tondi, against him and one John Schwarz, for damages sustained-by Tondi in the death of his infant son, Fulton Victor Tondi, caused, as alleged, by the negligence of Schwarz in driving a car owned by the appellant. The appellant not only appealed from said judgment, but likewise from the action of the court in overruling a motion in arrest of judgment, and the questions presented by these two appeals are before us in one record. The record contains a written agreement by which the parties agreed that “the evidence produced was sufficient to sustain the verdict in favor of the plaintiff, the appellee, against the defendant Schwarz and also against the defendant Bell, providing the proof was sufficient to sustain the finding of the court below, First, as to whether or not the evidence tended to prove that Schwarz was the agent of Bell, and, secondly, as to whether or not the evidence was sufficient to justify the court in finding that Schwarz as a matter of law was the agent of said Bell.” It was also agreed that “the only questions submitted to the Court of Appeals for determination * * * are the questions of agency and the action of the court below on the motion in arrest of judgment,” and it was further agreed that the evidence bearing ³³⁵ upon, the question of agency only should he incorporated in the record, and that all other evidence produced should be eliminated therefrom.

The facts upon which the question of agency is. to he determined are substantially these: About a week before the accident, which occurred on the 26th day of September, 1925, Dr. Bell, a dentist of Baltimore City, was at the automobile repair shop of Schwarz, at 3214 West Saratoga Street, where he had, at times, had repair work done. While there he asked Schwarz if he knew any one who wanted a car of the type of his, and he was told by Schwarz that he did not know of any such person, but that he would be glad to sell it for him. Schwarz then asked Dr. Bell what he wanted for it and he told him $425, and that he, Schwarz, could have all he got for it over that amount. Schwarz told him that he could not get that for it, but he would ho glad to sell it and charge nothing for his services.

The car, thereafter, was carried to the shop, of Schwarz every morning by Dr. Bell and left standing upon the street in front of his shop and a “For Sale” sign was placed upon it by Schwarz. In the evening the sign was removed by Schwarz and the car carried back by Dr. Bell to his. garage. This was done for about a week, when one morning a colored man, seeing the “For Sale” sign upon the. car, asked Schwarz what he would take for the car and was told by him $425. Hie man decided to buy the car if found satisfactory after examination by a friend, who knew something! of automobiles, and the. man then and there made, a deposit thereon of ten dollars, which was to be returned him if he did not buy Hie car.

It was then agreed between him and Schwarz that the latter should in the evening of that day take the ear to Columbia Avenue and Bayard Street, so that the friend might see and examine it. Schwarz called up Dr. Bell and 'told him. of the visit of the colored man and that he had in him' a prospective purchaser for the car, at the sum of $315. Later, about 12.30 o’clock of that day, Dr. Bell called at the ³³⁶ shop and gave to Sehwarz what he supposed was the registration card of the car, and, in a conversation with him at that time, Schwarz told him that he was, that evening, going to demonstrate it to the friend of the man who' had been to see him in the morning. Dr. Bell told him to go ahead and do so.

As understood by Dr. Bell, if the sale went through Sehwarz was to get nothing. In driving the car to- the place agreed upon, where it was to be inspected by the friend of the prospective purchaser, Schwarz ran over and killed the infant son of the equitable plaintiff. At the conclusion of the whole testimony the defendant Bell asked for a directed verdict in his favor, on the ground that it was shown by the uneontradicted evidence in the case that Sehwarz was not his servant or agent, but was an independent contractor, where the relation existing between them was that of bailor and bailee, and from such relation no liability attached to Bell because of the negligent act of Schwarz, resulting in the death of the infant son of the equitable plaintiff. The real question presented by this appeal, as stated by the agreement mentioned, is whether Schwarz was1 at the time of the accident the servant or agent of Dr. Bell, or whether he was an independent contractor, with the relation of bailor and bailee existing between them, from which, as we have said, no liability would attach to the defendant, Dr. Bell, because of said negligence of Schwarz.

According to the definition substantially adopted by many courts with some variations in language, “an independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work,” and “the vital test in determining whether a person employed to do certain work is an independent contractor or a mere servant is the control of the work which is reserved by the employer. Stated as a general proposition, if the contractor is under the control of the employer, he is a servant, if not under such control, he is an independent contractor.” 14 R. C. L. 67. ³³⁷ As stated in 6 C. J. 1099: “The relation of bailor and bailee is to be distinguished from that of master and servant, in that property in the hands of a servant is in the possession and control of the master, the servant having only custody, while in the case of bailment the possession and control of the property passes to' the bailee during the period of the performance of the contract.” In defining the relation of master and servant, this Court said in Baltimore Boot & Shoe Co. v. Jamar, 93 Md. 404 : “The relation of master and servant rests upon a contract of service express or implied between the parties, the essential elements of which are that the master .shall have control .and direction not only of the employment to which the contract relates, but of all of its details, and shall have the right to employ at will and for proper cause discharge those who serve him. If these elements are wanting, the relation does not exist. Wood, Master and Servant, secs. 1, 4; 2 Bailey, Personal Injuries Relating to Master and Servant, sec. 3139 et seq.; 1 Shearman and Redfield, Negligence, sec. 160; 14 Am.

Eng. Ency. of Law (1st Ed.), p. 745. In Whalen v. Sheehan, 237 Mass. 112 , 18 A. L. R. 972, the owner sent his automobile to one Buckley to be repaired. After making the repairs, Buckley took it out to “tune it up,” when the accident occurred.

The court there said: “The facts as a matter of law do not warrant the conclusion that the defendant, during the time the automobile was in the control of Buckley, had the right to exercise control and direction over the employment and all its details;; in other words had a right to say not only what was to be done, but when and how it should be done. Baltimore Boot & Shoe Co. v. Jamar, 93 Md. 404 . On the other hand, Buckley was in possession and had full control of the automobile and was in the exercise of a distinct and independent employment, using his own means and methods for accomplishing his work, and not being under the immediate supervision and control of his employer. Morgan v. Smith, 159 Mass. 570 ; Dutton v. Amesbury Nat.

Bank, 181 Mass. 154 . In that case the court held that the verdict for the defendant was properly directed. ³³⁸ In Segler v. Callister, 167 Cal. 377 , where an automobile was turned over to the keeper of a garage to- put in repair for sale, the owner to- pay for labor and storage and the garage keeper to have a commission if he sold the machine for a satisfactory price, the defendant was not held liable for injury inflicted by the garage keeper while running the machine on a road to test it. In that case the court said: “We have the case of a man who has turned his automobile over to a mechanic to put it in order. He exercised no control over the work nor over the mechanic in the performance of the work.

If, in the due performance of that work, it became proper for the mechanic to take the car out on the street to- test it, the owner would be no- more responsible for damage which might result from the mechanic’s bad management of the car, than he would if the mechanic, without any authority at all, had taken the car and so used it. * * * It certainly needs no citation of authority to show that the owner who has surrendered possession and control of his property under the indicated circumstances to- an independent contractor is not legally responsible for the damages which that contractor may occasion in the use of the property.” In Blashfield's Cyclopedia of Automobile Law (published in 1927), p. 1364, the author