Fowser Fast Freight v. Simmont

Collins, J., delivered the opinion of the Court. Here are appeals by Fowser Fast Freight, a body corporate, from judgments obtained by Mabel Simmont, Alfred D. Simmont and Robert Snyder. All three cases arise out of an automobile accident which occurred sometime after 1 P.M. on August 4, 1948, on the Washington Boulevard south of the Calvert Distillery. The cases were consolidated and tried before a jury.

The only question before this Court on these appeals is whether, at the time and place of the accident complained of, the driver of the tractor was acting in employer’s business, within the scope of his employment. The appeals come to this Court on the refusal of the trial judge to grant the demurrer prayers, which specifically raised the questions of agency and scope of employment, and motions for judgments N.O.V. In deciding, of course, whether the demurrer prayers and the judgments N. O. V. should have been granted, this Court should resolve all conflict in the evidence in favor of the appellees and should assume the truth of all evidence and all inferences which may be naturally and legitimately deduced therefrom, which tend to support the appellees’ claim. Armiger v. Baltimore Transit Co., 173 Md. 416, 425, 426 , 196 A. 111 ; Kuhn v. Carlin, 196 Md. 318 , 76 A. 2d 345 . We will therefore recite the evidence in a light most favorable to the appellees. ⁵⁸⁷ Alfred Mattson, an employee of the appellant and the driver of the tractor involved in this accident, was first employed by the appellant in November of 1947.

Verbal instructions were issued to him at that time by the appellant, that when he made a trip and took the tractor from the trailer, it was not to be unhooked or used for any purpose other than the business of the firm and he was not supposed to use it for personal use at any time. He was supposed to use the specific routes mapped out at appellant’s terminal to the delivery point. He could eat at any time, with limitations of roughly a half hour, at any place and time on his regular trip between the starting points and the destination points, where he could park his unit and do so. He had made previous trips from appellant’s terminal at Salem, New Jersey, to the Calvert Distillery and he knew that he was to go directly back to the terminal by the same route after he had unloaded his load.

These instructions were not repeated to him on August 4, 1948. Mattson, driving the tractor and trailer of the appellant with a load of bottles, left Salem on August 4, 1948, about 9:15 A.M. and according to instructions traveled U. S. Route 40 and U. S. Route 1 about 75 miles to his destination, the Calvert Distillery, arriving about 12:30 P.M. This distillery is located on the Washington Boulevard, south of Baltimore. He was paid according to the union scale for each trip. On this particular trip he was allowed three and one half hours from the starting point to Calvert Distillery, three hours to unload and three and one half hours to return.

For any time in excess of three hours that it was necessary for him to wait for his truck to be unloaded, he received extra pay. He was supposed to arrive at the Calvert Distillery for a 1 P. M. delivery. He had had no lunch. Mattson said, after he delivered the load, he found there would be a two or three hour delay before he could start his return trip.

The traffic manager for Calvert testified that it took from two to six hours to unload this glass, “it might be longer”. Mattson decided that as he would be there ⁵⁸⁸ for such a long period and had no duties to perform there, he would go and get something to eat. He unhooked the tractor from the trailer, left the Calvert Distillery grounds and traveled south on the Washington Boulevard for lunch bound for Clay's Diner, a distance of 2.7 miles. While bound for Clay’s Diner and traveling south from the Distillery, he was involved in the accident for which damages in these cases were obtained.

He had eaten at Clay’s Diner before. It is patronized mostly by truck drivers. It had been raining all day and the roads were wet. Mr. Nixon, the terminal manager for appellant, testified that there would have been no objection on the part of his company to Mattson walking to get his lunch.

Mattson said he knew there were several eating places between the distillery and Clay’s Diner, but he wanted to eat there. The only eating place north of the Calvert Distillery in that vicinity and on the route which Mattson traveled on his trip to the distillery was Hector’s Restaurant, which was at a distance of 1.16 miles. There is no evidence that Mattson knew of this eating place. South of the distillery and between it and Clay’s Diner were a number of eating places: Jack’s Place, .4 of a mile distant; Kay’s Place, .8 of a mile distant; Williams, 1 mile distant; Trucker’s Inn, 1% miles distant.

For violating the rules of the company, Mattson was not discharged but was suspended for one week. Other employees have been discharged for infraction of rules. There is, of course, a presumption that the driver of the automobile is the agent and servant of the owner. This presumption is rebuttable.

However, the evidence necessary to destroy that presumption as a matter of law must be conclusive. Otherwise it becomes a question for the jury. Phipps v. Milligan, 174 Md. 438 , 199 A. 498 ; National Trucking & Storage, Inc., v. Durkin, 183 Md. 584, 588 , 39 A. 2d 687 ; Taylor v. Freeman, 186 Md. 474, 477 , 47 A. 2d 500 ; Scott v. James Gibbons Co., 192 Md. 319, 324 , 64 A. 2d 117, 119 . If the facts here show a departure by Mattson from the appellant’s busi ⁵⁸⁹ ness, the appellant is not liable.

However, if the facts and any legitimate inferences therefrom show a mere deviation in Mattson’s interest, liability still may attach and the question as to whether Mattson was acting in the scope of his employment is one for the jury. National Trucking & Storage, Inc., v. Durkin, supra, 183 Md. 588 , 39 A. 2d 687 ; Restatement of the Law of Agency, Section 238. The appellant relies strongly on the case of National Trucking & Storage, Inc., v. Durkin, supra. There, Greer, a resident of Washington, and employed as a truck driver by the defendant, was directed by his employer to drive a tractor trailer to Baltimore for a load of sugar at a refinery.

He finished loading the sugar shortly after 5 P. M. Just before he finished loading, Arnold, a fellow employee, driving another tractor trailer of the defendant, came to the refinery to obtain a half load of sugar. As the refinery closed at 5 P. M., Arnold asked Greer to meet him at Pier 3, Light Street, and drove off. Greer kept the appointment. Both vehicles were parked.

Arnold’s tractor was detached from its trailer, and, accompanied by Greer, Arnold drove ten or eleven blocks to a restaurant to eat. Arnold parked the tractor near the restaurant where they ate. They then proceeded on foot to a tatooing parlor, where each was tatooed. Returning to the tractor, Greer took the wheel and started back to Pier 3, but became lost and drove around Baltimore for an hour and a half when the accident occurred.

Arnold admitted that at Pier 3, before going with Greer to eat, he was told to go back to Washington. The drivers had no permission to detach the tractor from the trailer. They were expected to eat somewhere on the road in or out of town where there were many eating places and where heavy equipment could be parked. This Court held that, when the employees took the tractor for the purpose of procuring the meal and other entertainment including tatooing, in disregard of their instructions to return to Washington, they departed from the master’s business and were not ⁵⁹⁰ in the scope of their employment.

That case differs from the one at bar. There was no possible advantage to the employer in the departure. The excursion was not only for eating but for other entertainment and consisted of a one and one-half hour drive over the Baltimore streets. There were many places to obtain food on the route back to Washington.

The time was 5 P. M. and the trip home would have required little more than one hour. In the case of Wagner v. Page, 179 Md. 465 , 20 A. 2d 164 , the driver of a bakery truck had permission from the owner to go to his home to rest preparatory to resuming work at 4 A. M. He drove the truck home and slept until 3 A. • M. He then awoke and decided to go to his sister’s house on West Lexington Street to get his street clothes to wear after he had completed his duties at the bakery. On the trip to his sister’s house on West Lexington Street he had with him in the truck two drivers, also employed by the bakery company. With him also were three young women and a man who requested him to take them to their home, near Lafayette Avenue, which was not on the direct route to Lexington Street, when the accident took place.

This Court in that case held that the driver was not within the scope of his employment at the time of the accident because he was using the vehicle only for his own purposes. In A. S. Abell Co. v. Sopher, 179 Md. 687 , 22 A. 2d 462 , the driver of the truck was employed to deliver