Brawner v. Hooper

Offutt, J., delivered the opinion of the Court. This is an appeal from a judgment for the plaintiff in the retrial of the case of Hooper v. Brawner, 148 Md. 417 . The case grows out of a collision between an automobile which was at the time of the accident owned by the appellant ⁵⁸² and driven by his chauffeur, and another one, in which 'the appellee was a passenger and which was at that time driven by her husband. In the course of the trial the plaintiff offered evidence which tended to show these facts, which for convenience we will state in narrative form.

The car in which appellee was riding was, between one and two o’clock in the afternoon of Sunday, Juné 11th, 1923, proceeding westerly along the Frederick Road at a point near Cooksville, when it approached another automobile parked on the south side of the road facing east and entirely off of the macadam. The road at that point is about thirty feet wide, of which the center of macadam part is about twelve or fourteen feet wide with broken and irregular edges. There is a dirt shoulder or way eight or nine feet wide on either side, and the grade slopes downward towards the east. As the appellee’s car, a Dodge, approached the parked car, a Haynes, another automobile, a Buick, coming east, swung out of its course to pass the Haynes, collided with the appellee’s car, hooked its left rear wheel in the left front wheel of appellee’s car, and pulled it around across the road at an angle of about forty-five degrees, so that it finally came to a stand still about a foot from ’the parked car.

While it was in that position appellant’s car, a Kissel, coming east, at about fifty or fifty-five miles an hour, struck it on the right side and injured the appellee. There was also evidence that the driver of the appellant’s car, “slid the wheels” thirty-seven feet before it struck the appellee’s car, that it struck appellee’s car “behind where the front fender goes onto the running board, between that and the back, driving his radiator and headlights and wheels all underneath, also driving the body through, tearing the running board and fender off,” and there was evidence that there was “plenty of space between the rear of the Dodge car and the north side of the road,” and that the situation of the Dodge car could have been seen by one approaching from the west for a distance of at least three hundred feet. When the accident occurred appellant was not present, but ⁵⁸³ Ms automobile was occupied by Mrs. Eleanor Brannan, Ms mother-in-law, and her two nieces, the Misses Winsett, under the following circumstances: At that time Mr. Brawner lived at the Baltimore Country Club, and his car was kept at the Roland Park Garage. Mrs. Brannan, the mother of his deceased wife, lived at the Geneva Apartments, and Mr. Brawner was accustomed to place his car and chauffeur at her disposal whenever she wanted it.

And she, to quote her testimony, “used to go out in it every Sunday afternoon, because he never used the car on Sunday afternoon,” she used to go out “just take a ride,” and on the “afternoon in question” the chauffeur brought it “as usual,” and when they started she said to Mm, “We will take a nice ride,” and that is all she said to him, because “of course, he knew we wanted to go in the country somewhere.” And he, without any further direction, drove out the Frederick Road, although, because of the heavy traffic, Mrs. Brannan did not care particularly for that drive on Sunday afternoon. She was accompanied by her two nieces, whom she had invited for the drive. Mr. Brawner did not know that they were going or where they were going, nor does it appear that she herself knew. In his own behalf Mr. Brawner said that he loaned her the car, on “that Sunday,” although he did not recall whether she asked specially for it on that occasion, because such a request was not necessary; “she had the privilege of driving the car when she cared to without any — in fact, without any instructions from me whatsoever.

She had the privilege of using the car when it was convenient for her to do so.” That he loaned the chauffeur with the car, but gave him no instructions as to taking Mrs. Brannan out, in fact he had no conversation with Mm at all on that occasion, and to the best of his recollection did not see him before he left “'for Mrs. BrannaMs,” and that he had no direction or control over the chauffeur “while the car was in the possession of Mrs. Bran-nan.” It was understood that the chauffeur would drive the car to her house on Sunday afternoons and he apparently did that as a matter of course, without any request from Mrs. ⁵⁸⁴ Brannan or special direction from Mr. Brawner. This is in substance the testimony relevant to the first ten exceptions presented by this appeal. Of these ten exceptions, nine relate to the rulings of the trial court upon questions of evidence and one to its rulings on the prayers. The plaintiff offered four prayers, of which the court refused three and granted the fourth, which related to the measure of damages.

The defendant offered nine prayers, of which the first three were refused and the others granted. The defendant’s first prayer was a demurrer to the evidence and, if appellant was answerable for the negligence of his chauffeur, was in our opinion properly refused. There was in the case some evidence from which the jury could have inferred that the accident was occasioned by the negligence of the appellant’s chauffeur, and the weight of that evidence was for the jury to determine. By his third prayer he sought to have the jury instructed that there was no evidence legally sufficient to show that the accident was caused “solely by the wrongful act, neglect or default of the defendant’s driver,” and that in the absence of such evidence the plaintiff could not recover.

That prayer was obviously erroneous, because the plaintiff was not obliged to show that the accident was occasioned “solely” by the negligence of the defendant’s chauffeur; it was enough if she showed that his negligence, concurring or combined with the negligence of the driver of the Buick car, caused it, and there was unquestionably evidence in the case from which that inference could have been drawn. Cooley on Torts (3rd Ed.), 248, etc.; Leland v. Empire Engineering Co., 135 Md. 218 . Where the negligent acts of two or more persons other than the plaintiff, and not imputable to him, acting independently, combine to produce the injury complained of, no one of them can escape liability on the ground that his negligence was not the sole cause of the injury. The principal question raised by the appeal, however, is presented by the refusal of the defendant’s second prayer.

By that prayer the appellee asked the court to instruct the ⁵⁸⁵ jury, “that as it appears from the unoontradicted evidence in this case that the automobile of the defendant was loaned by him on the occasion in question together with the driver thereof to' Mrs. Brannan for her personal pleasure and use, and that at the time of the accident in question said automobile was being operated solely for her pleasure and benefit, and that the defendant had no control or direction over said automobile or the driver thereof, their verdict must be in favor of the defendant.” The only difference between that prayer and the defendant’s second prayer in the case of Hooper v. Brawner, supra, is that in this case the prayer states as a matter of law that the defendant had no control or direction over said “automobile or the driver thereof,” while in the former case the prayer stated that the defendant had no control or direction over “said automobile.” Counsel for the appellant, however, contend with unusual force and earnestness that under the evidence in this case that prayer should have been granted, notwithstanding that in the former appeal this court disapproved it. That contention is based upon the assumption that the evidence in the present case supplies proof, which was wanting at the first trial, that the defendant’s automobile and the driver thereof were not at the time of the accident under the control and direction of the defendant. But we are unable to agree with that contention. The issue tendered by that prayer was whether in operating the car at the time of the accident appellant’s chauffeur was acting within the scope of his employment and subject to appellant’s control and direction.

The only evidence on that question at the former trial was that of Mrs. Bran-nan, and the only evidence relating to it at this trial was that of Mrs. Brannan and Mr. Brawner. Mrs. Brannan’s testimoney as to it was substantially the same at both trials, and Mr. Brawner in his testimony in this case added nothing to the legal effect of her testimony in the first trial. Mrs. Bran-nan in the first trial of this case said that on the day of the accident Mr. Brawner loaned her his car and chauffeur; that Mr. Brawner was not present; that she frequently borrowed the car from him; that whenever she wanted it he loaned it ⁵⁸⁶ to her; that the trip' was for pleasure, and that Mr. Brawner had no interest in it; and that he employed and paid the chauffeur. To1 that, in testifying in this ease, she added that it was generally understood that the chauffeur would bring the car down on Sundays, and that he brought it as usual on “that Sunday afternoon,” that she used to go out every Sunday afternoon, “just take a ride,” because Mr. Brawner never used the car on Sunday afternoons, that she did not send for the car, and gave the chauffeur m> directions as to the route other than that she would “take a nice ride.” Mr. Brawner testified that he did not recall how Mrs. Bran-nan got the car “that afternoon,” that he gave the chauffeur no directions to take Mrs. Brannan out, and that he did not recall having seen his chauffeur at all on that day before he went to Mrs. Brannan’s, and that he had no control or direction over him, “while the car was in her possession.” From this testimony it may be inferred that Mr. Brawner, as a courtesy to Mrs. Brannan, was accustomed to send his car and chauffeur to her residence on Sunday afternoons to take her and such guests as she chose to invite for a drive.

There is no positive evidence that Mrs. Brannan had the power to select the route, or that she ever attempted to exercise any such right, nor does it appear that she had or attempted to exercise the right to direct the chauffeur in the operation of the automobile. She was merely a passenger in an automobile loaned to her by her son-in-law for her pleasure and recreation, but operated by his chauffeur, who in fact received no instructions or directions from her as to' the manner of its operation, or the- route of the drive. It is patent that, in operating the ear under such circumstances, the chauffeur was acting either as the servant of Brawner or as the servant of Mrs. Brannan, and it is equally clear that he at the time of the accident was in the general employ of Brawner, who hired him, paid him, and had the power to discharge him or continue him in his service. The only question open then is whether the evidence to which we have referred is sufficient to establish the presumption, as a matter of law, that, when the accident happened, the chauffeur was the special ⁵⁸⁷ servant for the time of Mrs. Brannan, and that she had the exclusive power to. control and direct him in the operation of the car.

Upon the evidence in the former case in respect to that question this Court said: “It was incumbent upon the defendant, in order to break down the presumption that he was responsible, arising from the fact that the negligent act was done by his servant in the operation of an instrumentality owned by him, to show affirmatively as a matter of fact that he had not at the time of the accident the right to control or direct the servant, and we do not think it can be conclusively said as a matter of law that he has met that burden by the bare statement that he had ‘loaned’ the servant to another. He must go further and show that when he loaned him he surrendered to the borrower the right to control and direct him.” And what was said there we think applies with equal force to the evidence in the present case. Eor it can hardly be said that Mr. Brawner’s assertion that he had no direction or control over the chauffeur while the car was “in the possession of Mrs. Brannan” finally decided the question. Because in the first place, that was a mere conclusion drawn by the witness upon the very issue which the jury were required to- decide, predicated either upon facts proved in the case which they alone were empowered to consider, or upon facts not disclosed and which should not therefore have been considered at all.

In the second place, whether at the time of the accident the car was in the “possession” of Mrs. Brannan, or of Mr. Brawner through the agency of his chauffeur, was a question of fact for the jury, to be decided upon a consideration of all the evidence, but which could not be conclusively determined by Mr. Brawner. We said in Hooper v. Brawner, supra: “To relieve the master from liability for the act of a servant loaned to another, it is necessary that it should appear from direct testimony or as a necessary inference from the circumstances of the transaction that the servant was during the period of the loan under the control of the borrower and not under the control of the master.” And in our opinion, there is nothing in the direct evidence found in the record, or in the circumstances of this case, to justify ⁵⁸⁸ us in holding as a matter of law that appellant met that burden, and that at the time of the accident the appellant’s chauffeur was under the exclusive control and direction of Mrs. Brannan. While the legal effect of precisely such evidence as that to which we have referred had not, prior to Hooper v. Browner, supra, been before this Court, it had been considered by other courts, and we know of no decision which goes to the length of holding that it raises a conclusive legal presumption that a driver, “loaned” with a car, under the circumstances of this case, becomes the servant of the borrower, and ceases as to the operation of the car during the time it is used for the borrower to- be the servant of his general employer, for whose negligent acts done within the sco-pe of his employment the general employer is answerable. In proceeding from the garage tp Mrs. Brannan’s residence, and in returning from her residence to the garage^ the chauffeur was obviously acting within the general scope of his employment as the appellant’s servant, under an understanding and a custom which the appellant had sanctioned and permitted, and, presumably, at some time originated.

And it may be inferred that, when Mrs. Brannan actually occupied the car, he was, in driving her, still acting within the scope of his employment as Mr. Brawner’s chauffeur, because, so far as the record discloses, she actually exercised no more control or direction over the route of the drive or the operation of the car after she entered it than she had before, nor is there any positive or conclusive evidence that she had the right to- exercise such control and direction. Without referring again to the authorities cited in Hooper v. Brawner, supra,, reference may be made for purposes of illustration to the following cases, in which the phase of the relationship of master and servant under consideration here has been considered. In Pease v. Gardner, 113 Me. 264 , an automobile- and chauffeur were hired by other's to take a speaker on a speaking tour in a political campaign. The car was for his use, to be returned when he was through with it, and was to go «n such routes and such places as he directed, although he ⁵⁸⁹ did not direct its operation.

In speaking of the relations thus created the court said: “Under these facts it is clear that no liability rested upon Mr. Gardner. He bad nothing to do with engaging the car. He was simply one of the passengers for whom the ear was engaged, and although it was put in his charge during the trip>, so far as directions to the chauffeur were concerned as to the route to be taken, that did not create the relation of master and servant between them. It was as if the owner of a car should invite a friend to ride, without the owner accompanying him, and instruct the chauffeur to go wherever the friend might direct.

The chauffeur would still remain the servant of the owner, and the friend would still be merely tbe passenger for whose pleasure or convenience tbe ride is taken. That was tbe situation here so far as Mr. Gardner was concerned. He was not the master in any sense and Herrick was not his servant.” In Winfrey v. Lazarus, 148 Mo. App. 388 , the owner of an automobile went to Europe leaving his automobile in charge of his chauffeur.

Prior to' his absence he had allowed his married daughter to- use his car and chauffeur when she so desired, and he appears to have assumed that the same arrangement would