Martin Furniture Corp. v. Yost

McWirdiams, J., delivered the opinion of the Court. A middle-aged foursome consisting of John Franklin Buettner (Buettner), Betty Jaskulski (Betty), Robert C. Yost (Yost) and Theresa, his wife (Mrs. Yost), went to a dance on Saturday, 25 March 1962, at a union hall in East Baltimore. On their way home, Buettner, in whose car they were riding, collided with a truck owned by Truck Rental Co. and leased to Martin Furniture Corp. (Martin). All were injured in some degree.

Charles J. Douglas (Douglas), an employee of Martin, was the driver of the truck. ⁴⁵ Betty and her husband 1 sued Martin and Douglas. The Yosts also sued Martin and Douglas. In each case Martin made Buettner a third party defendant. Buettner did not file a cross-claim in either suit.

The cases were tried together before Judge Men-chine, without a jury. He found for Betty and the Yosts against Martin and for Martin against Buettner in the third party proceedings. Both Martin and Buettner have appealed. The Yosts liked “to dance more than anything.” Buettner, Mrs. Yost’s bachelor brother, shared their enthusiasm for dancing.

Having made plans to attend the dance Buettner bought the tickets. It was arranged that they would meet at the Yosts’ house and go to the hall in his car. He was to bring Betty whom he had been seeing regularly. The Yosts, however, had not met her.

Fie told Betty to meet him at the Sportman’s Bar around 7:00 P.M. He got there a little before she did and when she came in they had a glass of draft beer. It was about 8:00' P.M. when they arrived at his sister’s home. They “sat and talked for a half hour or more.” No drinks were served. They left at about 8:45 P.M. and drove directly to the hall, arriving there shortly after 9:00' P.M. They went to the table designated on their tickets which they shared with several other couples.

On each table were small “Coca-Cola” glasses and pitchers of draft beer which were replenished by waitresses as the evening wore on. In addition to the pretzels and potato chips on the table food was served between 11 and 12 o’clock. Betty said it consisted of “baked beans and roast beef” and that all of them ate some of it. She drank 4 or 5 glasses of beer and she guessed Buettner drank 6 or 7.

He said he might have had that many. Yost had 6 to 8 glasses of beer. Mrs. Yost thought she had 3 or 4. None of them drank anything but draft beer.

Their dancing seems to have been indefatigable as well as enthusiastic. After the dance, a little after 1 o’clock, they went to Stetka’s Bar on Eastern Avenue where another of Mrs. Yost’s brothers was one of the bartenders. Stetka’s was about to close when they arrived so they each had a small beer and started for home, ⁴⁶ shortly before 2 o’clock. Buettner said he was “wide awake” when they left the union hall and no one had expressed any doubts or fears in respect of his ability to drive carefully and safely.

Asked, on cross-examination, if she was intoxicated when they left Stetka’s, Betty said she knew she was not intoxicated and that the others “all acted normal.” Mrs. Yost said Buettner “seemed all right to” her and that he was operating his car “good, as well as any other time.” Asked if she “cautioned him” at any time during the evening about “the fact that he was drinking beer” she said, “No, it didn’t seem no reason to.” After leaving Stetka’s Buettner headed east on Eastern Avenue. Betty was beside him. Yost was on the right side of the ■rear seat; Mrs. Yost was on the left side. His car was a 1958 Ford sedan, powered by a 6 cylinder engine with a 3 speed manual transmission.

He thought his brakes and tires were in good condition. They chatted, as they went along, about the party and the people who were there. There was very little traffic. Buettner was going between 30 to 35 miles per hour in an area where the posted limit was 35 miles per hour.

None of them noticed anything unusual about his driving. Yost said he drove “just like any other time he drives, perfect.” Where Eastern Avenue passes under North Point Boulevard it is divided into eastbound and westbound lanes by a concrete median strip. East of the underpass the grade rises to the crest of a hill. At this point the eastbound lane is further divided into a “fast” lane next to the median strip, a “slow” lane to the right of the “fast” lane and a “curb” lane to the right of the “slow” lane.

The “curb” lane, about 400 feet further east, becomes an exit ramp leading to a shopping center. Just before reaching the crest of the hill Buettner, in the “slow” lane, became aware of a truck moving in the same direction in the “curb” lane. He estimated the speed of the truck to be about ■20 to 25 miles per hour. Since he was going 30 to 35 miles per hour he intended to pass the truck.

There was no other eastbound traffic near him as he remembers it. Asked if he intended to change lanes before passing he said he could have done so but “it didn’t seem like * * * [he] would have to at that time.” Suddenly and without any warning to Buettner, the ⁴⁷ truck turned to the left. Fie thought the truck was two- to three car lengths away when it turned across his path. He “hit the brakes” but he remembers nothing more.

Neither Betty nor Mrs. Yost was able to recall anything of significance. Yost thought he saw the truck’s tail light blink just before the collision. They all said there was nothing unusual about Buettner’s driving and their testimony appears to confirm his own statement that he was not exceeding the posted limit. Corporal Kemmerzell of the Baltimore County Police described the scene of the accident and identified the photographs he had taken.

He said the truck, which bore the insignia of “Martin Furniture Company,” was perpendicular to the path of travel, facing north, blocking both the “curb” lane and most of the “slow” lane. He found debris about in the middle of the “slow” lane. The outside wheel of the double left rear wheel of the truck had been broken off and was lying amidst the debris between the truck and the front of Buettner’s car. The distance between the truck and the front of Buettner’s car was found to be about 8 feet.

He said he noticed “straight skid marks leading directly” to Buettner’s car. He described them as being 132 feet long and “solid” rather than “broken.” The damage to the truck was confined to the left rear wheel and the suspension. Only the front of Buettner’s car was damaged. Corporal Kemmerzell stated that Buettner’s car “didn’t strike the rear wheel in regards to following the truck from the rear to the front.

It struck the rear wheel from the side, from the left side going toward the right side.” Judge Menchine refused to allow the officer to state his opinion of the speed of Buettner’s car based on either the skid marks or the damage to the front of his car. Corporal Schramm, who came to the scene of the accident with Corporal Kemmerzell, said he could not give an estimate of speed based on skid marks or front end damage. Neither he nor Kemmerzell examined Buettner’s tires or checked his brakes. In his report he said Buettner was “apparently normal.” His testimony, in general, supported Kemmerzell’s testimony.

Buettner testified that he “didn’t see any signals at all from ⁴⁸ [the truck] * * * hand signals, light signals or anything.” He said he thought he could bring his car, going 30 to 35 miles, per hour, to a complete stop in “about a car length or so.” The plaintiffs-appellees produced, as a part of their case in. chief, the testimony of Ivan Aaronson, the president of Martin. At the time of the accident he was general manager. Asked what his duties were he said he “did everything * * * [he] ran the store, bought merchandise * * * had control over the organization.” He confirmed what had been stipulated as the trial began, that Martin leased the truck from Truck Rental Co. He testified that no one else used the truck and, except for periodic servicing by Truck Rental Co., it was under the complete and exclusive control of Martin. Douglas began working for Martin, as a helper, about a year before the accident.

Six months later the driver quit “and he [Douglas] became the driver.” Aaronson said he had “complete authority to hire and fire” Douglas. The truck was used to deliver furniture to customers and for the movement of furniture from one to another of its three stores. The daily movements of the truck were under the supervision of a warehouseman. Deliveries were made to customers anywhere within a hundred mile radius of Baltimore and deliveries were made on the day of the accident in the “North Point Road area.” Aaron-son said Douglas was authorized to take the truck on that day and that he knew Douglas had it.

Douglas reported the accident to Aaronson the following morning. He did not reprimand Douglas then or at any other time. Except for the report to-Truck Rental Company, the accident seems not to have been discussed again. Douglas continued to work at the same job and at the same salary, for about two months more when he quit because of some disagreement with Aaronson, entirely unrelated to the accident.

We have not been made privy to the reasons why he appears to have fled the realm after leaving Martin’s employ. He was returned non est in both cases. Asked what Douglas had been told in respect of his duties- and responsibilities, Aaronson said: “When we gave him the driver’s job, is that what you want to know ? That’s his responsibility, of course, ⁴⁹ to deliver tbe furniture, pack it, make sure it is delivered to the customer in good shape.

The truck, there are certain things that have to be taken care of, the truck. The job, that there is no hitchhikers, that the truck has to be — after he makes deliveries, the truck comes back to the store, and we tell him there is one, two, three spots to park it in, and maybe forty, fifty other things, but at that time there is a lot of things that we discuss with him because we know he is capable of doing it, and we go over what his duties are.” He said also that the use of the truck for personal purposes was forbidden. I. Martin’s first and principal contention arises out of the application by the trial judge of a presumption that Douglas was acting within the scope of his employment and his finding that Martin did not rebut that presumption. Martin asserts, and we agree, that where the servant of the owner is involved in a collision, there is a reasonable presumption that the servant was acting within the scope of his employment.

But, argues Martin, it must first be proved that the operator of the vehicle is the servant of the person sought to be held and, secondly, it must be shown that the person sought to be held is the owner of the-vehicle. Since it was not the owner of the truck, Martin continues, the presumption that Douglas was acting within the scope of his employment cannot arise. Furthermore, says Martin, the trial judge erroneously applied the definition of “owner,” as it appears in Code, Art. 66y2, § 2, to the situation here presented. § 2 provides that the “term owner shall include any * * * corporation * * * having the exclusive use * * * [of the vehicle] under contract of purchase, lease * * We agree-that the statutory definition per se cannot be used to equate lessee with owner within the context of the instant case. Association of Independent Taxi Operators Inc. v. Kern, 178 Md. 252 , 13 A. 2d 374 (1940).

It should be observed that here we are dealing with two presumptions. The first is that the operator of the vehicle is the servant of its owner; the second, that the servant was acting. ⁵⁰ within the scope of his employment. We are not aware of any reason why these presumptions cannot be applied independently. In the case at bar, for example, it was unnecessary to make use of the first presumption because Martin admitted that Douglas was its servant.

Martin, nevertheless, seems to be saying that there is some occult force inherent in the word “owner” which bars the use of the second presumption unless it is applied in connection with the first presumption, and then only where the operator is the servant of the owner. Why ownership of the truck should be an essential factor in determining whether Douglas was acting within