Erdman v. Henry S. Horkheimer & Co.

Parke, J., delivered the opinion of the Court. The automobile of the plaintiff was damaged in a collision with a taxicab of the defendant. There was no testimony of negligence on the part of the driver of the plaintiff’s automobile, and there is no controversy that the ²⁰⁶ negligent operation of the defendant’s taxicab was the immediate cause of the collision and of the damage to the plaintiff’s automobile. The defense was that the defendant’s servant either was not driving the taxicab at the time of the accident, or was not then acting within the scope of his employment.

The prayers granted submitted these issues of fact to the jury, which found in favor of the plaintiff, and the defendant has appealed from the judgment rendered on the verdict. The ground of appeal is that the prayer to take the case from the jury should have been granted, on the theory that there was no legally sufficient evidence that the driver of the taxicab was acting within the course and scope of his employment when the accident happened. There can be no denial that the driver of the taxicab was a servant of the defendant to operate the taxicab for the benefit of the defendant by the transportation of passengers for hire. On the day of the accident the driver took the taxicab in the morning for its operation throughout the day on the business of his employer.

He was engaged in this service when he stopped at a clubhouse in Baltimore City in the early afternoon, and drank until he became intoxicated. The driver of the taxicab testified that he had no recollection of what occurred after he became drunk, and the testimony of what did occur is conflicting with reference to the subsequent material facts. The problem of the court is not to decide the issues of fact, but to determine whether there was legally sufficient testimony to go to the jury in support of the plaintiff’s right to recover. A reading of the record establishes that there was testimony from which the jury could find that, at the time of the accident, the taxicab of the defendant was so negligently operated by the servant of the defendant that- this negligence was the immediate cause of the collision which damaged the plaintiff’s automobile.

From these circumstances arises the reasonable presumption that the servant was acting in the scope of his employment, and upon the business of his master; and, so, is imposed upon the master the burden of surmounting this ²⁰⁷ presumption by showing that the servant was not engaged in the master’s business. Should this presumption be rebutted by the uncontradieted testimony, the case should not be submitted to the jury. Butt v. Smith, 148 Md. 340, 343 , 129 A. 352 ; International Co. v. Clark, 147 Md. 34, 37, 38 , 127 A. 647 ; Salowitch v. Kres, 147 Md. 23, 29-33 , 127 A. 643 ; Pennsylvania Ry. Co. v. Lord, 159 Md. 518, 526, 527 , 151 A. 400 ; Symington v. Sipes, 121 Md. 313, 318 , 88 A. 134 ; Carroll v. Hillendale Golf Club, 156 Md. 542, 544, 545 , 144 A. 693 .

In this case, however, the presumption is not overcome by the uncontradicted testimony. To the contrary, the testimony offered tended to prove that, although drunk, the defendant’s driver was capable of volition, and of driving the taxicab, and