Great Atlantic & Pacific Tea Co. v. Noppenberger

Offutt, J., delivered the opinion of the Court. The Great Atlantic & Pacific Tea Company, Inc., owns and operates a chain of grocery and provision stores in Baltimore City and the territory adjacent thereto. The stores which compose the chain are integrated as parts of one system or enterprise, and supplies found in one may ³⁸³ be and are from time to time removed to another as it happens that the one or the other is understocked or overstocked. Each of the several stores, while subject to the general control of the owner, operates under a system of departmental separation under which its meat business and its grocery business are operated as separate departments.

Each is in charge of a manager whose duties and authority are limited to the operation of the particular department to which he is assigned, and each department has its own corps of clerks and assistants. The chain is divided into groups, and to the same departments in each group an inspector or superintendent is assigned whose duties are to supervise and inspect the several stores in the group, and he in turn is subordinate to a superintendent in charge of the departments in the entire area. Among the stores operated by the company was one at 1205 Greenmount Avenue, and another at 23 East North Avenue. The “meat manager” of the Greenmount Avenue store was John C. Whatmough, the superintendent of the meat departments of the group of stores, which included that store and the North Avenue store, was George E. Ruark, and the general superintendent of the “meat operation in Baltimore and vicinity” was Irving W. Rathbone.

John H. Carter was also employed at the Greenmount Avenue store, as clerk in the grocery department, in which -employment he was subject to the control of George Fowble, the manager of that department in that store. On May 20th, 1935, Carter, at the direction of Whatmough, placed a number of lamb- shoulders in an automobile owned by Whatmough for the purpose of transporting them to the North Avenue store. At that time George Noppenberger, the appellee, was interested in an automobile business, known as the Independent Motor Service Company, which operated a garage at the intersection of Trenton Street and Love Grove Alley in the City of Baltimore. Carter drove to the ³⁸⁴ North Avenue store, which is at the intersection of Love Grove Alley, about half a block north of Trenton Street, and parked the automobile apparently on Love Grove Alley, which slopes towards Trenton Street, and took the shoulders from it to carry them to the store.

Noppenberger was then at work on a Lincoln automobile parked in front of his garage, and standing between the bumper of that machine and a small Ford machine parked about eighteen inches in front of it. While he was in that position, the automobile driven by Carter ran down the alley, struck the Lincoln car, drove it against the Ford, and pinched Noppenberger between the two, breaking his leg and otherwise severely injuring him. Following the accident, the appellee brought this action to recover compensation for the injuries he had suffered as a result of it. The case was tried before the court and a jury, the verdict was for the plaintiff, and from the judgment on that verdict the defendant appealed.

The negligence of Carter appears to have been conceded, and, while none of the pleadings appear in the record, it may be assumed that the only question considered in the trial court was whether at the time of the accident Carter was acting within the scope of his employment as a servant of the appellant. The record presents thirty-three exceptions, of which thirty-two relate to rulings on evidence and one to the court’s rulings on the prayers. The appellee offered two prayers, both of which were granted, and the appellant seven, of which one was granted and the others refused. The defendant’s “B” prayer was a general demurrer to the evidence, and its first prayer asked the court to direct a verdict for the defendant on the ground that the uncontradicted evidence showed that the driver of Whafmough’s automobile was not authorized by it to use it for the purpose of transporting goods from one of its stores to another.

The refusal of these prayers ³⁸⁵ raised the important question presented by the appeal, which is whether, in using Whatmough’s automobile to transport defendant’s supplies, Carter, the driver, was acting within the scope of his employment as defendant’s employee. it appears without contradiction that Whatmough and Carter were both employed by the defendant, Whatmough as manager of the meat department, and Carter as a clerk in the grocery department, of its Greenmount Avenue store, and that Whatmough was subordinate to Ruark, the assistant superintendent of the meat departments of a group of stores which included that store and the North Avenue store, and subject to his (Ruark’s) orders. It also appears without contradiction that Carter was not licensed to operate a motor vehicle over the public highways of the state, and that in operating Whatmough’s automobile he violated its motor vehicle laws. Whatmough owned a Chevrolet sedan which he used to travel back and forth between his place of business and his home. There was evidence tending to show that the brakes on that automobile were out of repair and ineffective, although he said that, so far as he knew, they were in good condition on the day of the accident.

He testified that “on the grocery side” of the Greenmount Avenue store there were two clerks and a manager, and “on the meat side” one manager. It is consistent with his testimony that he was the only employee on “the meat side.” He said in the course of his testimony that in the forenoon of May 20th Ruark came into the store, checked his orders and “hackwork,” looked in the icebox and said, “You have a lot of lamb shoulders,” and that he replied, “Yes, sir. Can any of our stores use them,” and that Ruark then said, “Yes, 23 East North Avenue”; that just then a customer came in who wanted a leg of lamb; he did not have a leg of lamb there then, so he asked Carter, a grocery clerk, to take the shoulders to the North Avenue store and bring back a leg of lamb. He further testified that there was no telephone in the store, and that the lamb shoulders weighed in the aggregate twenty-three or ³⁸⁶ twenty-four pounds.

On the Wednesday following the Monday on which the accident occurred, Ruark returned to the store, paid Whatmough for his services, and told him “that he was finished,” and on the following day he went to see Rathbone, the general superintendent, at the general offices of the southern division of the company, to learn why he was “laid off,” and that Rathbone told him it was because “orders came down from higher up that his cutting rate was not so good.” He explained by cutting rate he meant the manner in which the meat was cut to produce a given percentage of profit. On cross-examination he testified that the “meat manager” and the “grocery manager” were separate, that Carter was not “under him at all,” and that Ruark was his immediate superior, and he then gave this testimony: “Did you have any authority from him to send this boy Carter out driving your automobile? A. Well, I did it before and he knew about it. Mr. Rathbone had seen him on the street 'and he seen me on the street and said, if I needed anything to send somebody else.

Q. Were you ever authorized by any of these people to send Carter? A. No. Q. Didn’t you know as a matter of fact that Carter had no license to drive ? A. Carter had a learner’s license and he has driven cars before. Q. Wasn’t it necessary in order to use that license to have somebody with a driver’s license.

Didn’t you know that he had no right to drive a car by himself with that license? * * * The Witness: Yes, sir.” He further testified: “Did I understand you to say that Mr. Ruark told you to take those shoulders up to North Avenue? A. Yes, sir. Q. He didn’t tell you to find out first whether North Avenue wanted them or not? The Witness: I think Mr. Ruark did say something about telephoning but I didn’t have his ’phone number and I needed the leg of lamb, and I figured to kill two birds with one stone.

Q. Then Mr. Ruark did tell you first to telephone up there and find out whether they wanted them? A. I think he did, I am not sure. * * * Now, during a previous occasion, hadn’t Mr. Ruark transported stuff like that in ³⁸⁷ his car from one store to another ? A. Different occasions I have sent stuff out before like that. Q. Just a minute.

On previous occasions hadn’t Mr. Ruark carried stuff like that? A. He did and he didn’t. Q. Did he ever do it? A. Yes, sir, at times.

Q. Now, if it was too much stuff for Mr. Ruark to carry at times didn’t they send the truck there? A. No, sir. Q. The truck has never been there? A. The truck has never been used at my store.

Q. During your period? A. During my period—to -bring stuff but not to take meat away.” He was then asked, “Did you deliver orders from the store where you were employed?” and he replied, “When I had a helper I did, and then I was told not to leave the store, that I was the manager and they didn’t want the manager to leave, and that’s why I asked John to go up the other store for me. The Court: How often was your automobile used in delivering orders of the company? A. Why I would not say it was used every day, maybe once in a while or three or four times a week.” He further said that he had “got John before to drive it,” that he paid for -the gasoline with his own money, and that he paid for the cab in which Carter returned after the accident.

Ruark, testifying for the defendant, gave a different version of the conversation between him and Whatmough; he said: “Well, Monday morning I went in there—of course, we usually look around the icebox—and saw he had quite a few lamb shoulders, and I said, ‘Charley, it looks as though you have too many on hand,’ and he said, ‘Yes, sir.’ I said, ‘All right, you call 23 East North Avenue, and if they need them I will be glad to move them for you as I go along.’ ” He also said that he never authorized Whatmough to use his own automobile on the company’s business, that he had never authorized him to send Carter or anyone else out driving that car on company’s business, and that “On -several occasions he had checked Whatmough—warning that he could not use the car on the company business—and he was advised of that. Whatmough was so notified. He talked to Whatmough as ³⁸⁸ to the reasons why he was laid off. He told Whatmough that he was suspended indefinitely on account of disobeying the company’s rules of using his car.

He told him he was suspended indefinitely for disobeying the company’s orders, that was, of using the car on company business— they would not allow him to do that. He checked him on it several times in person that he could not use the car on the company business. * * * He had a card with a list of things on it, and when he called it to the man’s attention he checked it, and that is what he meant by ‘checking.’ ” He said that all meat managers have assistants, and that on the day of the accident Whatmough “had him as assistant,” but it does not appear who “him” was, that if supplies in the stores ran short they would apply to him and he would procure what they needed, that before taking meat to deliver he did not always have the manager of a store telephone to find out what another store needed, but did so on different occasions. He then testified: “Well, why did you do it on this particular morning? A. First because I usually hit 23 East North Avenue first and if 23 East North Avenue needed the shoulders I would have naturally hit 1205 Greenmount Avenue first and taken them up to 23 East North Avenue.

Q. Why didn’t you, when you still have thirteen or fourteen stores to stop at that morning, take the shoulders with you at that time? A. Because I had already been to 23 East North Avenue. Q. And that was the only store you thought might need them? A. That’s the only store I thought would need them that I had already been in.” He further said that he had not told Whatmough that he could not let Carter drive his ear on company business.

Rathbone testified that he had not spoken to Whatmough about cutting rates at all, but had told him that he had been dismissed for using his personal car on company business, that he had previously learned of an instance in which Whatmough had so used it and had warned him then, and that Whatmough had promised not to do it again. He admitted that he knew of at least one store ³⁸⁹ where the manager delivered goods in his own automobile with his own insurance covering it, but said that the company did not tell him to do that, although it did not discharge him for doing it. The two prayers under consideration concede for their purpose the truth of such of these facts as tend to support the plaintiff’s right to recover, together with such inference as may naturally and legitimately be deduced from them. The question which we are required to decide is whether they are legally sufficient to support an inference that, at the time of the accident, Carter was acting within the scope of his employment as a servant of the appellant.

It is undisputed that he was at the time employed by the appellant, and it may also be assumed that he was not expressly authorized by the defendant to use Whatmough’s automobile to transport the lamb shoulders to the North Avenue store, for there is no evidence of any such express authorization. The appellant contends that he was not acting within the scope of his authority, even though he was at the time engaged in transacting the master’s business, for the master’s benefit, at the request of another servant of the master, and at a time when he was in the service of the master. In support of that contention it relies largely upon analogies drawn from the relation of principal and agent and master and servant. But, as pointed out in Mechem on Agency, sec. 36, there is this distinction between the two, that a conventional agent is employed to represent the principal in relation to some contractual obligation with a third person, whereas a servant is employed to render service to, rather than for, the master, although it may happen that the service will involve relations with third persons.

While both relations rest in contract, in measuring the extent of an agent’s authority emphasis is more often placed upon the terms of the contract than in the case of a servant, where the emphasis is ordinarily placed upon the nature of the employment. The distinction is seldom of importance, although it may become so where the inquiry is directed to the liability ³⁹⁰ of one for the tortious acts of his representative. In the case of an agent, that liability often .depends upon an apparent authority of the agent, for, since it is his function to create primary obligations giving rise to primary rights, the person with whom he deals as the representative of his principal may justly complain if he is permitted by the principal to display an appearance of authority which has never in fact been granted to him. In the case of a servant, whose acts do not create, but violate, primary rights, and give rise to secondary obligations and remedial rights, appearances are of less importance because ordinarily the third party is not misled by the master’s representations of the servant’s authority.

Huff-cut on Agency, sec. 5. In such a case the course of employment is said to be the basis of liability. Id. The fact that “the actor was in the general employment of the master does not” create an inference “that a given act done by him was within the scope of his employment,” (A. L. Inst., Restatement, Agency, sec. 228, comment b), for to be within the scope of the employment the conduct must be of a kind the actor is employed to perform, occur during a period not unreasonably disconnected from the authorized period of employment, in a locality not unreasonably distant from the authorized area, and actuated at least in part by a purpose to serve the master.

Id., secs. 228, 229, 233, 234, 235, 236. On the other hand, certain conduct of the servant may be within the scope of his employment, although not intended or