Hood v. Azrael

Parke, J., delivered the opinion of the Court. The defendant, L. Dewey Hood, trading as Blue Ridge Coal Company, is in the business of selling coal at retail in the City of Baltimore. A customer gave an order for coal, and, while it was being carried in a truck for delivery to the customer, a collision occurred between the truck and an automobile in which the plaintiff was riding as a guest. There was evidence tending to establish that the injuries sustained by the plaintiff, who was ⁶⁴³ without fault, were the direct result of negligence in the operation of the truck by its driver, a colored man named Kermit Edmunds.

The primary question on the record is whether Edmunds was, at the time of the collision, the servant of the defendant or an independent contractor. Edmunds was the bailee and driver of a truck, and hired and paid the man who helped him in loading and unloading. The bailee kept the truck, which had a capacity of two tons, on his own premises, maintained it in repair and in operating condition; bought all the oil, gasoline, and supplies at his own expense; and had possession of the truck and entire control of its use. For a few months before the collision, the bailee was endeavoring to make his living by hauling with this truck, and went practically every day, but at whatever hour it suited him, to the defendant’s coal yard to get coal to haul, as the defendant was, almost exclusively, his patron, although neither was bound by contract beyond each job of hauling.

The defendant, when he had coal to be delivered at the time of the truckman’s call at the coal yard, gave the bailee an order for coal that bore the name of the defendant as the seller, the kind, quantity, and price of the coal ordered, and generally the name and address of the customer, and usually instructions not to deliver the coal until the amount due had been paid. The truckman would receive the written order for the coal, and drive the truck to the right bin, where he and his helper would fill the sacks with the quantity and kind of coal purchased ;• and put the sacks on the truck. Thus loaded, the truck was then driven off in charge of the truckman to the residence of the purchaser, where the truckman would first collect the amount shown to be payable, and then leave the coal, and return to the coal yard to give the money collected to the defendant. If the buyer did not pay, the coal would be returned to the yard.

The sacks in which the coal was delivered were furnished by the defendant, and were, commonly left on the truck. For the services so rendered, the truckman ⁶⁴⁴ was paid weekly for the tonnage of coal hauled during that period at the rate of ninety cents a ton, unless the coal was hauled beyond the limits of the city, when an increased compensation was paid. The defendant offered no proof, and there is no conflict of evidence. The record does not present any testimony from which the jury might have found that the defendant was negligent in engaging the truckman to haul the coal in the truck he was using at the time of the collision.

See Wonder v. Balto. & O. R. Co., 32 Md. 411, 418 ; Hanrathy v. Northern Central Ry. Co., 46 Md. 280, 288 ; Balto. Elevator Co. v. Neal, 65 Md. 438, 451 , 5 A. 338 . Nor can it be maintained that the hauling and delivery of coal in sacks is a nuisance, nor such inherently dangerous work that a principal becomes liable for the acts of his independent contractor while doing the thing promised.

Whitelock v. Dennis, 139 Md. 557, 561 , 116 A. 68 ; Rounds v. Phillips, 166 Md. 164 , 170 A. 532, 536 . So the question on the undisputed evidence is simply whether the driver of the truck was a servant of the defendant or an independent contractor. Bentley, Shriver 6 Co. v. Edwards, 100 Md. 652, 658, 659 , 60 A. 283 ; Hall v. Poole, 94 Md. 171, 177 , 50 A. 703 ; Norfolk & Western Ry. Co. v. Hoover, 79 Md. 253, 265 , 29 A. 994 ; Yates v. McCullough Iron Co., 69 Md. 370, 382 , 16 A. 280 .

In Deford v. State, 30 Md. 179 , at page 203, Judge Alvey stated for the court “that the rule of ‘respondeat