Hendler Creamery Co. v. Miller

Adkins, J., delivered the opinion of the Court. The plaintiff, appellee here, was injured by an electric truck of the defendant. At the time of the injury the truck was being operated in the business of the defendant. The principal question is, Was there any evidence legally sufficient to show that a servant of defendant, while acting within the scope of his employment, was guilty of negligence to which the injury was attributable ?

This question is raised by the twenty-first bill of exception, which embraces the refusal of defendant’s first and second prayers. The facts briefly stated are as follows: The defendant agreed to install in plaintiff’s store an ice cream cabinet, on the promise that plaintiff would continue to purchase ice cream from it for a certain period of time. On the day of the accident, plaintiff was in the rear of his store when the truck arrived, loaded with five of the cabinets, one of which was intended for plaintiff. On the ²⁶⁶ truck were four employees of defendant, Perry, the chauffeur, Morris Levin, Henry Strauss, and George Pierce, helpers.

One of the men, supposed by plaintiff to he the chauffeur, entered the store with a delivery ticket, and asked plaintiff to show him where the cabinet was to he placed and through which door it was to he brought in. Plaintiff went out to the pavement, and - gave him the necessary instructions. While the unloading proceeded plaintiff remained on the pavement. He testified that there were four men, including the driver, on the truck; that they took the cabinet out and lowered the front end in the door, and that it was projecting about a foot inside the door, and that one man on the inside told some man on the outside to drive the truck away, so they could lower the other end on the sidewalk; that there were two men inside the store, one of whom he thought was the driver; that one of them said twice, “Pull the truck ahead”; that the witness was standing on the pavement on one side of the cabinet; that the truck pulled over to the other side of the street; that there were two men at the hack of the cabinet and, in lowering it, it got away from them and fell to the sidewalk; that he then walked around to look at the cabinet and was passing to the other side looking at it, and before he knew anything, the truck came back and pinned him on top of the cabinet; that the tail gate of the truck was on a little incline and came up over his hack and pushed him down on the cabinet and mashed him there, and mashed the cabinet (which was made of metal of some kind) in about a half an inch with his stomach, in there; that his stomach was against the edge of the cabinet, taking the skin off from his hips half way to his shoulders; that after a little time, the truck was pulled away and some one lifted him off the cabinet, and the next thing he knew the truck hit him again and knocked him up against .the building, bursting his pocket, in which he had his money, scattering it over the street; that the second time he was hit he was being carried by two or three men, and one of ²⁶⁷ them was knocked down; that the man that directed the truck to be pulled away, he supposed was the driver, because he had charge of the truck.

Strauss testified that Perry, the driver, told him to pull the truck up, so he could get the back end down on the pavea ment; that witness pulled the truck up until he came to the cross street, and “I couldn’t run over the top of the pavement, there was a lamp post there, so I went to shut the control off' and I went back into reverse — there is a little pin on the control and it slipped back into reverse — that is what you operate it by, to go forward or reverse”; that he is not a mechanic and couldn’t tell whether it was broke or not; that he did not examine it; that the trade came back to the pavement when it slipped in reverse, and he heard a lot of people screaming; that then the driver jumped ¡in and shoved witness over and grabbed the control handle and had full control of the truck and pulled forward -and tried to shut the power off, and “it came back in reverse,” and “I guess it hit Mr. Miller again”; that the regular chauffeur, Perry, was driving at that time; that witness was not a chauffeur, he was a helper in the cabinet department; that he had an instruction license; that the chauffeur was in charge of the crew of men down there that day; that he took his orders from him; that Mr. Duke was foreman of the cabinet department, and witness was a laborer in that department; that one day, when a chauffeur named Benjamin Smith had a sprained wrist, witness was ordered by Duke to drive the truck that day, and he instructed Smith to ride beside him on the truck; that witness had taken two examinations but failed both times, the last time just before the accident; that Smith’s truck was a gas truck. Duke testified on behalf of defendant that he never gave Strauss authority at any time to run a machine; that, on the occasion spoken of by Strauss, he sent him out to crank the car and help Smith out; that he told Smith in the presence of 'Strauss three or four times that Smith was not to allow Strauss to drive the car, knowing that he had failed to pass an examination, and that Smith was not the instructor named ²⁶⁸ on the instruction card, but Smith’s brother; that he told Strauss he could not drive any car whatever, “not to touch any of the wheels”; that Perry was the chauffeur of the truck which injured plaintiff, and Strauss and the other two' men were sent along to1 help take the cabinets off. Strauss was plaintiff’s witness, and he was not offered in rebuttal to contradict Duke’s testimony that he had positively forbidden him to drive a car. And Strauss himself testified that he had never driven an electric car, and he did not claim that he was authorized to drive any car except on one day, and then with the chauffeur beside him.

The presumption that one driving a car at the time of an accident is the servant of the owner,' and acting within the scope of his authority, is overcome by the uncontradicted testimony of absence of authority on that occasion. Vonderhost v. Amhrine, 98 Md. 406 ; Dearholt Co. v. Merritt, 133 Md. 323 ; Symington v. Sipes, 121 Md. 313 ; State, use of Debilius, v. Benson, 129 Md. 693 ; Pollock v. Watts, 142 Md. 403 ; Salowitch v. Kres, 147 Md. 23 ; Butt v. Smith, 148 Md. 340 . This principle is recognized by appellee; and in argument he does not rely upon the presumption referred to, but insists that on the evidence in the case, and unavoidable inferences therefrom, “Strauss, the helper, was, not only in law but in fact, expected, intended and authorized, at least in the exigency which existed, to do exactly what he did do”; and bases that argument on (a) the testimony of Strauss that the chauffeur, Perry, who directed him to move the truck, was his foreman and was in charge of the crew; (b) the testimony of Strauss that he had been ordered by Duke, the superintendent, on a previous occasion, to drive a truck of appellant for an entire day, when a chauffeur, named Smith, had a sprained wrist (which is denied by both Duke and Smith) ; (c) the testimony of Dulce, the superintendent, that there was no foreman in charge of the crew, and none was needed, as they had been working together long enough to know what to do; (d) inferences drawn by appellee that the duties of the men were interchangeable, and that they each were in ²⁶⁹ fact expected and authorized to do whatever may have been necessary in the transportation and delivery of the cabinets; (e) the inference drawn by appellee that the chauffeur Perry had at least implied authority to. secure assistance from the helpers in moving the truck in the emergency when he was in the store with his egress blocked (as. appellee alleges) by the cabinet, and the necessity arose to move the truck in order to lower the cabinet and relieve the blocking of traffic. In the opinion of the writer of this opinion the inferences drawn by appellee are not legitimate.

Even if it be true that on one occasion, not fixed in point of time, Strauss was directed to drive a gasoline truck with the regular chauffeur sitting beside him, it cannot be inferred that he was authorized on the occasion of the accident to1 drive an electric truck without the chauffeur being on the truck, especially in face of the uncontradicted testimony that he was forbidden to drive any car after the superintendent learned he had twice failed to pass the necessary examination, and when he could not drive a car1 without violating the law. And it was not within the implied authority of the chauffeur to call upon him to do so. iSTor1 can it bo inferred that the duties of a licensed chauffeur were interchangeable with those of mere helpers in the matter of lifting cabinets. The case chiefly relied on by appellee in this connection is Adams Express Company v. Lansburgh