Jordan Stabler Co. v. Tankersly

Digges, J., delivered the opinion of the Court. The exceptions in this case consist of two, the first to the admissibility of evidence, and the second to the ruling of the court on the prayers. At the conclusion of the evidence the plaintiff offered ten prayers and the defendant thirteen. The court granted the plaintiff’s fifth, sixth, seventh and eighth prayers .and overruled the defendant’s special exceptions, to the plaintiff’s fifth, seventh and eighth prayers, and rejected the defendant’s first, second, third, fourth, fifth, sixth, eleventh and thirteenth .prayers and granted the defendant’s seventh, eighth, ninth and twelfth prayers.

The court’s action in this respect forms the second bill of exception. The verdict being for the plaintiff, the defendant has taken this appeal. At the .argument in this court the appellant (defendant below) abandoned the first exception and relied solely upon the second bill of exception, relating to the court’s ruling upon the prayers, and particularly upon the court’s action in overruling its special exception to the granting of ⁴⁵⁷ the plaintiff’s eighth prayer and the refusal of the court to grant the defendant’s fourth, fifth .and sixth prayers. The material facts of the case are undisputed and show that the defendant is a corporation engaged in the grocery business in Baltimore City.

It has. two locations in said city from which its business is conducted, the location of the principal place of business being 701-705 Madison Street, and its branch store being in Roland Park. That the business of the branch store is carried on separately and distinct, in so far as details of management are concerned, the manager of that branch having full authority in the selection of employees; that-this branch makes a large number of deliveries to its customers in tbe vicinity of Roland Park and some deliveries to customers in other parts of the city; that there are used for making such deliveries trucks belonging to the defendant and operated by chauffeurs or drivers employed by the defendant. On February 8, 1921, at .about 6.15 P. M., the plaintiff, while driving a Ford coupe accompanied by a friend, was struck by one of the trucks owned and operated by the defendant from its Roland Park branch and driven at that time by Samuel Chapman, an employee of the defendant. As a result of this collision the plaintiff was severely injured and his automobile practically demolished.

The accident occurred at the intersection of White-lock 'Street and Druid Hill Avenue. At the time the plaintiff was driving south on Druid Hill Avenue on the west or right side thereof, and had proceeded two-thirds of the distance .across Whitelock Street when he was struck on his left side by the defendant’s truck approaching1 from the plaintiff’s left and proceeding along’ on the south or left side of WTiitelock Street, and without lights. The plaintiff’s automobile was running at the rate of 12 or 15 miles an hour, and as he approached Whitelock Street he sounded his horn ■and looked to his right but saw nothing; approaching from that direction. It is unnecessary to> detail further the evidence in respect of the accident, because it is practically admitted by tlie defendant that tbe accident was. occasioned by its truck at the time being driven by Chapman, one of its ⁴⁵⁸ employees, and that there was- gross negligence on the part of the driver and no- contributory negligence on the part of the plaintiff, and further, that the plaintiff suffered such injury and damage as testified to by the witnesses and for which the jury awarded the sum of $1,200.

The sole question to be determined is, was Sam Chapman at the time of the accident acting' as the agent of the defendant and within the scope of his employment ? If he was, the defendant is liable; if he was not, there is no- liability. The evidence on this point shows that some time after 4.30 P. M. on the day of the accident Chapman proceeded to take a. truckload of groceries from the defendant’s place of business on Madison Street to- its: Roland Park branch; that on his route he met two young colored acquaintances, Warren Clark and William Wilson, and asked them to accompany him to Roland P'ark; that they got in the truck and went with him to the Roland P'ark branch of the defendant, .and assisted Chap-man in unloading. After this was- completed, Chapman was told that there were four orders to- be delivered on his way to the -garage where the truck was kept at night.

These orders were to- be- delivered at the following places-: One on University Parkway, near* Roland Park, two at the Green-way Apartments-, Charles and 34th Streets, and' one at No. 16 West Mount Vernon Place, the garage- where the truck was kept -at night being, located in the 1100 block of Division Street. These orders were placed in the truck and Chapman was told to- make the* deliveries- and thee take the truck to the garage for the night. Chapman left the Roland Park branch at about 5.30 P. M., accompanied b-y Clark and Wilson. He made delivery of the articles to be delivered on University P'arkway and the -Greenway Apartments, and theii proceeded south on St. Paul -Street to- Lanva-le, west on Lanvale to Charles 'Street, then to North Avenue, to Eutaw Place, thence to Whitelock 'Street, to the intersection of Druid Hill Avenue, where the accident occurred, which point was about ten or twelve blocks from the garage.

The .articles to be delivered at No-. 16 West Mount Vernon Place had not been delivered and were in the track .at the time of ⁴⁵⁹ tbe collision. Cba.pman stopped on Lanvale Street, according to tbe witnesses Clark and Wilson, and put some empty bottles in tbe truck, and again stopped on Eutaw Place, got out of tbe truck and delivered a package to a bouse on tbat street, although they did not know wbat it was or to whom it was delivered. Chapman ceased to be employed by the defendant from tbe day after tbe accident, and was not present and did not testify at the trial. Chapman’s mother lived about one or two blocks from the scene of the accident, her home being located in the 2200 block on Etting Street.

Clark lived about two- blocks from the garage, and Wilson, the other occupant of the truck, lived on Druid Hill Avenue about midway between the scene of the accident and the garage. The defendant employed the witness, Harry J. Simon, whose duty it was to see that the orders taken for delivery were checked as they were placed upon the truck, and to make such entries or notations as would enable bim to keep in touch with the various trucks while deliveries' were being made. This witness-, as also the witness, John Y. Scrivener, the manager of the Roland Park branch, testified that the directions given to the drivers were general in their nature .and were to the effect that deliveries- be made in the natural order as determined by their locations, unless specifically directed to the contrary. There were frequently deliveries to the number of 300 to 350 made- from the Roland Park branch in one day.

Each day it was the duty of Chapman, the chauffeur, to get his. truck at the garage in the morning, and during the morning to haul freight and marketing from the wharves to the Roland Park branch, and then make a delivery trip- from the Roland Park branch. In the afternoon it was his duty to go to the city house of the defendant, receive hulk goods in box form, and carry them to- the Roland Park branch, then to make another delivery trip from the Roland Park branch and return the track to the garage after making the last delivery in the afternoon. No one at the city store