Bentley, Shriver & Co. v. Edwards

Jones, J., delivered the opinion of the Court. In this case the appellee, the plaintiff below, sued the appellants, defendants below, in the Baltimore City Court to recover damages for injuries received by the appellee from an accident caused by the alleged negligence of an employee and servant of the appellants. From a judgment rendered against. them in the Court below in such suit the appellants have. ⁶⁵⁴ brought this appeal. At the trial of the case below seven exceptions were taken by the appellants to rulings of the Court upon offers of testimony and one to the action of the Court in rejecting certain instructions proposed on their behalf for submission to the jury; and certain others which sought to withdraw the case from the consideration;of the jury.

The appellants carry on in the city of Baltimore a wholesale grocery business in premises situated on South street in said city. This street runs north and south and the premises'of the appellants are on the west side of the street. On the opposite or east side of the street are the premises occupied by the Maryland Candy Company. The plaintiff’s employment is that of a driver of a truck; and on the day of the accident in question he hauled from one of the depots of the city a load, consisting of cases and barrels, to the premises of the candy company for delivery to said company, driving his truck, according to his testimony, “right up to the curb” in front of these premises on South street — his truck facing south.

Having reported to the shipping clerk of the candy company, and received instuction from him to “unload this load where he then was,” he went back to his truck, got upon and crossed over the foot-board; then, putting his' right foot on the foot-board and the left on the hub of the right front wheel, was proceeding to untie a rope, with which it had been necessary for him to secure his load upon the truck, in “the customary way and the way in which he always did it,” when, as he alleges and testifies, he was struck by a heavily laden truck approaching from the south, which he had not seen, and which, by reason of having his back to the direction from which it approached, he could not see, and thus received the injuries of which he complains. The appellants, in connection with their business, have trucks and drays in use for hauling goods to and from their place of business as occasion may require, and the drivers of the vehicles so used are among their regular employees. It is in evidence that the truck which, the plaintiff alleges, struck and injured him as described, belonged to the appellants and ⁶⁵⁵ was at the time of the accident in charge of, and being driven by, one Winfield Carpenter, a regular driver for, and a servant of, the appellants. There is some contradiction in the evidence as to how the accident happened, it being testified on behalf of the appellee that he was knocked from his position by the passing truck, and on behalf of the appellants that he jumped to the ground and was then caught by the vehicle driven by Carpenter.

There is practically no dispute as to the other facts that have been mentioned as in evidence. This is as far as reference need be made to the evidence in the case until we have disposed of the eighth exception, the one taken to the action of the Court upon the prayers. At the conclusion of the testimony the plaintiff (appellee) asked of the Court two instructions to the jury and the defendants (appellants) ten. The Court granted both of the instructions asked for by the plaintiff and the first and second of those asked for by the defendants.

As to the others of the defendants' prayers the record states “the Court refused the defendants’ third, fourth, fifth, sixth seventh, eighth, ninth and tenth prayers. Wherefore the defendants prayed leave to except and did except to the action of the Court in refusing said prayers and each of them.”’ This is the only exception to the Courts action on the prayers; and this will now be considered. In the first prayer of the plaintiff the Court instructed the jury that the plaintiff was entitled to recover if they should find that at the time of the accident the plaintiff was, “using due care and prudence;” that he was injured by being struck by a truck belonging to the defendants “while being driven by Carpenter; that Carpenter was at the time in the service of the defendants and acting in the course of his employment; ” and that the- plaintiff was “struck, thrown down and injured by reason of the want, on the part of the said * * * Carpenter of such ordinary care and prudence as drivers of ordinary care and prudence exercise under similar circumstances in driving along a thorougfare such as they may find the one in question to have been.” In the plaintiff’s second instruction the jury were informed as to the allowance of damages ⁶⁵⁶ in case they found for the plaintiff. By the first prayer of the defendants the jury were instructed that in order to recover the plaintiff must prove ‘ ‘that the defendants or their driver had been guilty of some act of negligence, and that by their act or omission have^violated some duty incumbent upon them which has caused the injury complained of;” and that the defendants were “not responsible for injuries resulting from unavoidable accident.” And by defendants’ second prayer that the plaintiff could not recover if the jury believed “that want of ordinary care and prudence on his part contributed to the injuries he received.” If the instructions granted by the lower Court are open to criticism in any respect they cannot be reviewed ori this appeal because the record does not disclose that any exception was taken to the action of that Court in respect to them, and does not therefore present here any question of their propriety.

We come now to the rejected prayers of the appellants as to which the action of the trial Court is brought up for review by their eighth exception. Of these prayers the fourth and sixth asked the Court to rule that the plaintiff was not entitled to recover because of there being an insufficiency of evidence to support a recovery; and the seventh asked the Court to so rule by reason of the state of the evidence as to contributory negligence on the part of the plaintiff. Manifestly if the trial Court was right in granting the plaintiff’s prayers, the prayers of the appellants, to which particular reference has just been made, were properly refused. The plaintiff’s prayers could only have been granted upon the assumption that there was a state of evidence that it was proper to submit to the jury as a basis for the plaintiff to recover; and of course the Court could not tell the jury that upon that same state of evidence the plaintiff could not recover at all.

For the reasons already given we must assume, upon this record, that the action of the trial Court in granting the plaintiff’s prayers was correct; and as a necessary consequence of that the rejection of the fourth, sixth and seventh of the appellants’ prayers must be affirmed. While it is not necessary to give ' ⁶⁵⁷ further reasons for an affirmance of the action of the trial Court as to the prayers of the appellants, which have just been considered, it may be proper to add that the evidence set out in the record has been carefully examined in this connection, and has not been found to warrant such instructions. We think also that all of the remaining prayers of the appellants were properly rejected. They are .all constructed upon the theory of the plaintiff, being at the time of the accident here in question a servant of the appellants and a fellow, servant of the driver of their truck through whose alleged negligence the accident occurred.

The fifth prayer asks the Court to say as a matter of law from the evidence that the plaintiff and the said driver (Carpenter) were fellow servants. To have granted such an instruction would have been in direct contravention of admitted facts and other uncontradicted evidence appearing in the case. As all other questions to be passed upon here arise in this aspect of the case we may as well examine now the evidence bearing upon it. This is to the effect that in the fall of 1902 plaintiff was driving a team for William H. Burmeister, whose business it was to hire out teams; That he was employed by Burmeister to drive a team which Burmeister furnished to the Maryland Candy Company; that-the team so furnished to the candy company was first driven by Burmeister’s son and then by the plaintiff who was paid by Burmeister.

That on Saturday evening next preceding the day of the accident the shipping clerk of the Maryland Candy Company, having received a notice from the railroad company that there was some freight for the candy company at the depot, gave the notice with some money to the plaintiff with instructions to go for the freight the first thing Monday morning following; that the plaintiff took his team to Burmeister’s stable and gave the notice and money to Burmeister, who kept them, and told him (Burmeister) that he, the plaintiff, was told to bring the freight in on Monday. On Monday morning following, the plaintiff reported to Burmeister, received from him the notice and money for freight charges, went to the depot, loaded his ⁶⁵⁸ wagon with a couple cases and some barrels and drove with the load to the premises of the Maryland Candy Company. Then followed what has already been set out. The plaintiff reported to the shipping clerk of the candy company; was told to unload where his truck was; and upon his proceeding to unload the accident by which he was injured occurred as has been described.

What has been stated appears in the testimony of the plaintiff when as a witness he was examined in chief. Upon cross-examination he further said that he was employed by Burmeister who took him to the Maryland Candy Company; that he never saw any of the persons connected with the operation of the business of that concern until he wentthere to drive; that “it was understood that he was to do generally whatever he was told to do by them, that is to haul what he was told to haul;” that he was doing a little hauling for them just two weeks before the accident occurred; that, on one or two occasions, he was sent to the grocery department of the appellants across the street from the candy factory “to get a couple of packages or something that had to go on the load;” that he did not remember what it was he went over there for or when it was, but “went over there to get some few packages that had to go to the boat or railroad wharf consigned to go and they went with” his load; that he got orders from a Mr. Jackson, who he understood was, and who was, manager of the concern (candy factory), and Mr. Bird, who was the shipping clerk; and “that he had not received any pay of any kind from the candy company but that he got his wages from Mr. Burmeister.” The foregoing is the only evidence in the record tending to define the relations of the plaintiff (appellee) to the appellants in the service in which he was engaged at the time of the accident in question, and there is no contradiction of it; nor is there evidence tending to contradict it. The question raised by the prayers under consideration is, whose service was the plaintiff in when the accident occurred which produced the injuries? And the proposition is asserted in these prayers, as matter of law, that he was at the time the servant of the ⁶⁵⁹ appellants and therefore a fellow servant with their driver, Carpenter, whose negligence is alleged to have caused the accident.

As there is no contradiction of the facts upon which this question here depends it becomes a question of law to be determined by the Court. Nor. & West. Rd. Co. v. Hoover, 79 Md. 253 ; Yates v. McCullough Iron Co., 69 Md. 370 ; Hall v. Poole, 94 Md. 171 .

The appellants allege, and tendered evidence to show, that the candy company is a branch of their business and under their control and management through employees in their service; and in treating the question here raised the identity of the candy factory with the appellants will be assumed. The following facts appear as admitted, or at least as entirely uncontradicted, that the plaintiff when he undertook to do hauling for the candy factory was in the employment and pay of Burmeisier, was the latter’s servant and as such was sent in charge of the truck hired by Burmeister to the candy factory to do the hauling which he was engaged in at the time of the accident to him; and during the time he was doing the hauling he was drawing his wages from Burmeister and was receiving no pay for the services rendered from the candy factory. Under these circumstances there can be no doubt that Burmeister was the general employer of the plaintiff. From this the presumption arises that the plaintiff when sent by his master, in his pay, to take charge of the truck hired tp. the candy factory for the service indicated remained the servant of Burmeister. “The mere fact that a servant is sent to do work pointed out to him by a person who has made a bargain with his master does not make him that person’s servant.

More than that is necessary to take him out of the relation established by the only contract which he has made and to make him a voluntary subject of a new sovereign, as the master is sometimes called in the old books.” Driscoll v. Towle, 181 Mass. 416 . The proposition laid down is distinctly supported by the late case in this Court of Sacker v. Waddell, 98 Md. 43 , in which is adopted what was said in the course of the notes to case of Hardy v. Shedden, 37 L. R. A. 1, at p. 71, that the ⁶⁶⁰ theory “which is now established by an overwhelming weight of authority, is that a servant sent to take charge of a chattel owned by his master, while it is placed at the disposal of another party for the performance of a given piece of work, is presumed to remain the servant of his general employer, and that some special circumstances apart from the mere fact of the hiring of the chattel must be put in evidence in order to overcome this presumption. The leading cases upon this doctrine are those known as the “Carriage Cases.” Among the last-mentioned cases is that of Quarman v. Burnett, 6 Mees. & Welsby, 499, a leading case, and which, in the case of Deford v. Keyser, 30 Md. 179 , is said, in the course of the exhaustive opinion of Judge Alvey in that case, to be the one “in which the present approved doctrine” in regard “to the true distinctions applicable to cases of the class” to which that and the present case belong, “was first definitely established.” This case has become familiar but the facts may be profitably recited here as affording light in which to discuss the facts of the present case and as an aid in giving them proper effect. The defendants in the case were two ladies who kept a carriage of their own, but hired horses and a coachman from a job mistress.

They generally had the same horses and always the same coachman to whom they paid two shillings for each drive, having told him when they first began using their own carriage, which was about three years before the accident which was the ground of the suit, that they would pay him that sum. He received regular weekly wages from the job mistress. The defendants sometimes took the coachman and horses into the countryfor several weeks, when they paid him a certain sum per week. They had a coachman’s coat and a livery hat, for which the coachman was measured, and which he wore when driving the defendants and took off on his return to their house, where the coat and hat were hung up in the passage.

On the day of the accident there in question he went into the defendants’ house to take off his hat (the coat not having been worn by him on that day), and left no one in charge of the horses; they started off, and ran against the ⁶⁶¹ plaintiffs chaise causing the injury for which the suit was brought. In the course of the judgment rendered in the case Parke, B., said: “The liability, by virtue of the principle ot master and servant, must cease where the relation itself ceases to exist; and no other person than the master of such servant can be liable, on the simple ground that the servant is the servant of another, and his act the act of another; consequently a third person entering into a contract with the master, which does not raise the relation of master and servant at all, is not thereby rendered liable, and to make such person liable, recourse must be had to a different and more extended principle, namely, that a